Kwame Ajamu v. City of Cleveland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0095p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RICKY JACKSON (17-3840); KWAME AJAMU, fka ┐
Ronnie Bridgeman, and WILEY EDWARD BRIDGEMAN │
(17-3843), │
Plaintiffs-Appellants, │
│
> Nos. 17-3840/3843
v. │
│
│
CITY OF CLEVELAND; JEROLD ENGLEHART; KAREN │
LAMENDOLA, Guardian Ad Litem on behalf of Frank │
Stoiker; ESTATE OF EUGENE TERPAY, Administrator; │
ESTATE OF JAMES T. FARMER, Administrator; ESTATE │
OF JOHN STAIMPEL, Administrator,
│
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:15-cv-00989—Christopher A. Boyko, District Judge.

Argued: June 14, 2018

Decided and Filed: May 20, 2019

Before: ROGERS and BUSH, Circuit Judges.*
_________________

COUNSEL

ARGUED: Elizabeth C. Wang, LOEVY & LOEVY, Boulder, Colorado, for all Appellants.
William M. Menzalora, CITY OF CLEVELAND, Cleveland, Ohio, for Appellee City of
Cleveland. Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellees Karen
Lamendola and the Estates of Eugene Terpay, James Farmer, and John Staimpel. ON BRIEF:
Elizabeth C. Wang, LOEVY & LOEVY, Boulder, Colorado, for Appellant Ricky Jackson. Terry
H. Gilbert, Jacqueline C. Greene, FRIEDMAN & GILBERT, Cleveland, Ohio, David E. Mills,

*The Honorable Damon J. Keith, United States Circuit Judge, was a member of the original panel but passed
away on April 28, 2019 and did not participate in the panel’s decision on rehearing.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 2

THE MILLS LAW OFFICE LLC, Cleveland, Ohio, for Appellants Kwame Ajamu and Wiley
Bridgeman. William M. Menzalora, CITY OF CLEVELAND, Cleveland, Ohio, for Appellee City
of Cleveland. Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellees
Karen Lamendola and the Estates of Eugene Terpay, James Farmer, and John Staimpel.

BUSH, J., delivered the opinion of the court in which ROGERS, J., joined.
________________________

AMENDED OPINION
________________________

JOHN K. BUSH, Circuit Judge. Appellants Ricky Jackson, Wiley Bridgeman, and Kwame
Ajamu served a long time in prison for a crime they did not commit. For Jackson, it was thirty-
nine years; for Bridgeman, thirty-seven years; for Ajamu, twenty-five years. They each spent close
to two and a half of those years on death row.

These men cannot get back any of the time they lost or erase the things they experienced.
The best they can hope for is a remedy of damages under 42 U.S.C. § 1983 and Ohio law. This
appeal concerns whether their complaints state sufficient facts for certain claims not to be
dismissed and whether the men have presented enough evidence for other claims to overcome
summary judgment.

In 1975, Jackson, Ajamu, and Bridgeman were convicted of murder. Their convictions
were based largely on the purportedly eyewitness testimony of Edward Vernon, who then was
thirteen years old. In 2014, nearly forty years later, Vernon recanted, disclosing that police officers
had coerced him into testifying falsely. Vernon’s recantation led to the overturning of appellants’
convictions.

The exonerated men filed suit in the Northern District of Ohio, alleging § 1983 claims
based on alleged violations of their constitutional rights by the officers and the City of Cleveland
(“Cleveland”), along with state-law claims for indemnification against Cleveland. This appeal
requires us to untangle a knot of legal issues surrounding the district court’s grant of appellees’
motions for judgment on the pleadings and for summary judgment and its denial of appellants’
motions to amend their complaints. We AFFIRM the district court’s grant of summary judgment
as to the § 1983 claims based on conspiracy, but we REVERSE and REMAND the district court’s
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 3

(1) judgment on the pleadings as to the indemnification claims; (2) denial of appellants’ motions
to amend their complaints to substitute the administrator of the estates of the deceased officers as
a party in their place; (3) summary judgment as to § 1983 claims arising from violations of Brady
v. Maryland, 373 U.S. 83 (1963), fabrication of evidence, and malicious prosecution; and (4)
summary judgment as to claims against Cleveland based on Monell v. Department of Social
Services, 436 U.S. 658 (1978).

I. BACKGROUND

A. Factual Background

As befits this stage of the litigation, we recite the relevant facts in the light most favorable
to the plaintiffs, who are appellants here. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.
2006).

In 1973, the Cleveland Division of Police promulgated General Police Order 19-73 (“GPO
19-73”), entitled “PRETRIAL DISCOVERY RIGHTS OF DEFENSE ATTORNEYS AND
COURTS IN CRIMINAL CASES.” R. 101-7, PageID 1630.1 GPO 19-73 provided that “defense
counsel may be entitled” to several types of evidence, including “[e]vidence favorable to the
defendant.” Id. But it also included a section entitled “EXCEPTION TO THE FOREGOING,”
which contained the following provision: “The foregoing does not authorize the discovery or the
inspection of . . . statements made by witnesses or prospective witnesses to state agents.” Id. The
Manual of Rules used by the Division of Police (the “Manual”) did not otherwise instruct officers
in handling potentially exculpatory information and did not mention Brady, as the Manual’s last
update had occurred before Brady was decided.

As described later in this opinion, some testimony suggests that Cleveland police officers
may have received no formal training in their Brady obligations, and may not have known that
Brady imposed any obligations upon them.

1All record citations are citations to the record in No. 17-3840 (Jackson’s suit) unless otherwise indicated.
Citations to the record in Ajamu and Bridgeman’s suit will be prefaced by “No. 17-3843.”
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 4

Deposition testimony also reveals that, regardless of how officers understood their
obligations under Brady, violations of those obligations were common. Although it was generally
understood that anything in a detective’s file that was pertinent to a case “should go to the
prosecutor,” it was up to individual officers whether they followed this policy, and they did not
always do so. R. 103, PageID 3794. The general practice at the time, followed in “every case,”
was for detectives to provide prosecutors with only “arrest reports, witness forms and written
statements taken by the Statement Unit,” and “photos,” while omitting to turn over other evidence,
including potentially exculpatory evidence, unless it was specifically requested by the prosecutor.
Id. at PageID 3672–75. Deposition testimony describes this as a “practice,” which “happened
more than it should,” of “detectives not [turning] over all the evidence to prosecutors.” R. 104,
PageID 3970.

Some detectives took a more proactive role by “manipulating the evidence” before giving
it to prosecutors. Id. at PageID 3967. This was done, one officer testified, “because winning the
case was what it was all about. It wasn’t about what was fair, it wasn’t about what was honest, it
was about winning.” Id. at PageID 3967–68.

Against this backdrop of evidence of incomplete Brady knowledge and frequent Brady
violations, the record tells the following story.

On May 19, 1975, Edward Vernon, then twelve years old, was riding the bus home from
school when he heard two gunshots. Being twelve, Vernon exited the bus at the earliest
opportunity and ran to where he believed the shots originated. Coming upon the scene, Vernon
found a gunshot victim, but nothing to indicate who was responsible for the shooting. After police
had secured the area, Vernon left and met up with a friend who told Vernon that the perpetrators
were Ricky Jackson, Kwame Ajamu (then known as Ronnie Bridgeman), and Wiley Bridgeman
(collectively, “Plaintiffs”). Vernon, a civic-minded youth, returned to the crime scene and told an
officer that he knew who had committed the shooting, whereupon the officer recorded Vernon’s
contact information.

The next day, Detectives Eugene Terpay and James Farmer went to Vernon’s house and
requested that he go down to the station to give a statement. As Vernon later recounted, when his
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 5

mother asked to accompany him to the station, the officers “told her, no, he’ll be all right, he’ll be
all right.” R. 99-1, PageID 1183. At the station, Vernon told Terpay and Farmer that Plaintiffs
had committed the shooting and gave their descriptions, which he was able to do because he knew
them from the neighborhood. The following day, Terpay and Farmer again went to Vernon’s
house and asked him for Plaintiffs’ addresses.

Detective John Staimpel, along with his partner Frank Stoiker, was working the case with
Terpay and Farmer. On May 25, Staimpel and another detective, whose name Vernon cannot
remember, picked Vernon up at his house to bring him to a line-up. Vernon’s mother again asked
to accompany him, and Vernon recalls the detectives saying, “[N]o, he’ll be all right. We’ll bring
him back after the lineup.” Id. at PageID 1189. The detectives brought Vernon to the line-up and,
as he recollects, asked him if “I see anybody that I recognize up there,” which Vernon interpreted
as asking whether he had seen anyone in the line-up commit the shooting. Id. at PageID 1190.
Vernon replied that he had not. Ricky Jackson and Wiley Bridgeman, who had been arrested
earlier in the day, were in that line-up. From Vernon’s point of view, he had been forthright up
until this point: he had honestly told the detectives that (he thought) he knew who had committed
the crime, but he had never said that he had actually witnessed the crime, and so when he was
asked at the line-up whether he saw anyone whom he had seen commit the crime, he said no.

The two detectives then brought Vernon into a room, whereupon Staimpel accused Vernon
of lying, threatened to send his parents to jail for perjury, banged on a table, and used racial
pejoratives to describe Vernon. (Vernon and Plaintiffs are African-Americans.) After Vernon
began to cry, Staimpel said, “[W]e’ll fix it,” and the detectives left the room. Id. at PageID 1191.
When the detectives returned, they gave Vernon a piece of paper, explained to him that it said he
had failed to identify Jackson and Bridgeman in the line-up because he had been scared of their
retaliating, and told Vernon to sign it, which Vernon did.

Stoiker signed a police report dated May 25, 1975, which described Stoiker and Staimpel’s
picking Vernon up and taking him to the line-up, Vernon’s failing to identify Jackson and
Bridgeman, and Vernon’s explaining this failure as due to his being “very afraid” of Plaintiffs. R.
114-19, PageID 5113.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 6

The day after the line-up, Terpay and Farmer again spoke with Vernon. The detectives
brought Vernon to the station, where he told them that he had not witnessed the crime and that he
had never said that he had witnessed the crime. Terpay was wroth, yelling at Vernon and accusing
him of having lied when he had gone to the line-up and said “that this is not them.” R. 99-1,
PageID 1194. Terpay threatened to send Vernon’s parents to jail for perjury, and Vernon agreed
to testify that he had seen Plaintiffs commit the crime.

A police report dated May 28, 1975 indicates that Stoiker and Staimpel “[c]onsulted with
[the prosecutor] who issued papers charging [Plaintiffs] with [homicide].” R. 114-28, PageID
5321.

Prior to Jackson’s trial, Terpay coached Vernon regarding his testimony and afterwards
reviewed the trial transcript with Vernon to ensure that his testimony in the trials of Bridgeman
and Ajamu was consistent.

Plaintiffs were convicted at separate trials. They were sentenced to death, but their
sentences were later reduced to life imprisonment.

For nearly forty years, Vernon struggled with the knowledge that his testimony had put
Plaintiffs in prison. He later testified, “Through out [sic] the years this case has . . . be[en] heavy
on my emotion, my everything.” R. 99-2, PageID 1234. “I wanted to come forward throughout
the years, but I was scared, scared to come forward and tell the truth . . . with this battle in my
mind, battle in my spirit, battle in my heart . . . . I’m battling with this . . . pretty much all my life
. . . .” R. 99-1, PageID 1203. The years did not lessen the turmoil in Vernon’s mind.

One day in 2013, Vernon finally disburdened his conscience. He was lying in a hospital
bed, stricken with hypertension and kidney failure, when his pastor visited and told him that
Innocence Project attorneys were seeking to exonerate Plaintiffs. Vernon testified:

So, after he stated that and I said, okay, well, you know what—I got up out of the
bed and I just broke down and I cried on his shoulder and I said, well, I’m ready to
tell the truth, I’m ready to come forward and tell the truth that Ricky Jackson did
not commit the crime that he went to prison for.

Id. at PageID 1203–04.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 7

Vernon formally recanted his testimony against each of the three Plaintiffs in November
2014. After the recantation, the prosecutor for Cuyahoga County, where Cleveland is located,
admitted that there was “no evidence tying any of the three convicted defendants to the crimes”
and that “[t]hey have been victims of a terrible injustice.” R. 116, PageID 6302–03.

B. Procedural History

On May 19, 2015, Jackson filed suit against Terpay, Farmer, Stoiker,2 Staimpel, and
Cleveland (collectively, “Defendants”), as well as others,3 alleging a multitude of state and federal
claims. Bridgeman and Ajamu filed suit against the same defendants on July 2, 2015. On October
1, 2015, Cleveland moved for judgment on the pleadings, under Federal Rule of Civil Procedure
12(c), as to the state-law claims in both complaints. The district court granted both motions.

In November 2015, Jackson, and Bridgeman and Ajamu in their parallel lawsuit, all moved
for leave to file amended complaints substituting the administrator of the estates of the deceased
Defendants (the “administrator”) for those Defendants. (J. Reid Yoder is the administrator of all
of the estates.) The district court denied those motions as futile, reasoning that a § 1983 claim
brought in Ohio does not survive a defendant’s death.

On January 27, 2017, Stoiker (the only living individual Defendant) moved for summary
judgment in both lawsuits, arguing that he was not involved in any unconstitutional activity and
that, even if he was, he is protected by qualified immunity. On the same date, Cleveland also
moved for summary judgment as to the Monell claims, arguing that Plaintiffs had failed to provide
evidence sufficient for a jury to find Cleveland liable. The district court granted both motions for
summary judgment.

2Karen Lamendola is acting as guardian ad litem on behalf of Stoiker and is therefore the named defendant-
appellee representing Stoiker’s interests. We continue to refer to Stoiker as a Defendant for narrative convenience.
3Plaintiffs also named another former officer, Jerold Englehart, in their notices of appeal. However, in their
appellate briefs, they expressly abandon their claims against Englehart. Jackson Br. at 33; Ajamu & Bridgeman Br.
at 6.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 8

II. DISCUSSION

We review de novo a judgment on the pleadings under Federal Rule of Civil Procedure
12(c), applying the same standard we apply to review the grant of a motion to dismiss under Rule
12(b)(6). Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010).
We therefore “construe the complaint in the light most favorable to the plaintiff and accept all
allegations as true” to determine whether the “complaint . . . contain[s] sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Doe v. Miami Univ., 882
F.3d 579, 588 (6th Cir. 2018) (citations and internal quotation marks omitted).

Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend “should [be] freely
give[n] . . . when justice so requires.” “We review a district court’s order denying a Rule 15(a)
motion to amend for an abuse of discretion.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d
417, 420 (6th Cir. 2000) (citing Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir.
1990)). “A district court abuses its discretion when it relies on clearly erroneous findings of fact,
uses an erroneous legal standard, or improperly applies the law.” United States v. Arny, 831 F.3d
725, 730 (6th Cir. 2016) (citation and internal quotation marks omitted).

“We review a district court’s grant of summary judgment de novo.” Adair v. Charter Cty.
of Wayne, 452 F.3d 482, 486 (6th Cir. 2006) (quoting Allen v. Mich. Dep’t of Corr., 165 F.3d 405,
409 (6th Cir. 1999)). Summary judgment is appropriate when “no genuine dispute as to any
material fact” exists and the moving party “is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “A genuine dispute of material fact exists ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Peffer v. Stephens, 880 F.3d 256, 262 (6th
Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). At the summary
judgment stage, “the evidence is construed and all reasonable inferences are drawn in favor of the
nonmoving party.” Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013) (citing Hawkins v.
Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008)).

Numerous decisions by the district court are now on appeal: (1) the district court’s
dismissal, with prejudice, of Plaintiffs’ claims against Cleveland for indemnification under state
law; (2) the district court’s denial of Plaintiffs’ motions to substitute the administrator of the
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 9

deceased Defendants’ estates as a defendant; (3) the district court’s grant of summary judgment to
Stoiker on the § 1983 claims; and (4) the district court’s grant of summary judgment to Cleveland
on the Monell claims. We address each issue in turn.

A. Indemnification Claims

The claims against Cleveland under Ohio Revised Code § 2744.07(B)4 seek
indemnification for damages based on the alleged torts of the individual Defendants, who are
former employees of Cleveland. Section 2744.07(B) provides that “a political subdivision shall
indemnify and hold harmless an employee” found liable for that employee’s acts, so long as the
employee was “acting in good faith” and “within the scope of employment.”5 The district court
granted Cleveland’s motions for judgment on the pleadings, reasoning that § 2744.07(B) provides
only a tortfeasor employee, and not a tort victim, with the right to bring a claim of indemnification
against the tortfeasor’s employer.

Plaintiffs argue that the district court erred in dismissing their indemnification claims with
prejudice because the claims were not yet ripe and unripe claims, if they are to be dismissed, should
only be dismissed without prejudice.

Generally, a claim may not be adjudicated on its merits unless it is ripe. See Nat’l Rifle
Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997). A claim is unripe when it “is anchored
in future events that may not occur as anticipated, or at all.” Id. (citing Pac. Gas & Elec. Co. v.
State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 200–01 (1983); Dames & Moore
v. Regan, 453 U.S. 654, 689 (1981)). This prohibition comes both from the case or controversy
requirement of Article III and from prudential considerations. See Brown v. Ferro Corp., 763 F.2d

4At the time of the district court’s opinion, the relevant language appeared in
§ 2744.07(A)(2), so the district
court cited that provision. See Jackson v. City of Cleveland, No. 1:15CV989, 2016 WL 3952117, at *2 (N.D. Ohio
July 20, 2016). Because the Ohio Revised Code has since been amended, we cite the subsection in which the relevant
language now appears, subsection (B). The language has not been changed in any way that would affect the district
court’s, or our, analysis.
5Cleveland’s brief does not address whether the defendant officers were acting “in good faith” and within
the scope of their employment for purposes of the indemnification claims, and the district court did not consider those
issues. We will not address unargued principles of Ohio law on which the district court did not rule.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 10

798, 801 (6th Cir. 1985) (noting that a ripeness analysis includes a discretionary determination
beyond the Article III standing considerations).

The ripeness doctrine exists “to prevent the courts, through premature adjudication, from
entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568, 580 (1985) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)).
Application of this doctrine “requires that the court exercise its discretion to determine if judicial
resolution would be desirable under all of the circumstances.” Brown, 763 F.2d at 801. Of primary
importance is “whether the issues tendered are appropriate for judicial resolution,” and, if so, the
degree of “hardship to the parties if judicial relief is denied” before the claim is allowed to ripen
further. Young v. Klutznick, 652 F.2d 617, 625 (6th Cir. 1981) (quoting Toilet Goods Ass’n v.
Gardner, 387 U.S. 158, 162 (1967)).

Indemnification claims are frequently brought while unripe, depending as they often do on
the favorable adjudication of underlying tort claims. Because of this, as a general matter, a claim
for indemnification for damages that may be awarded on an underlying tort claim should not be
adjudicated on the merits until the underlying claim is adjudicated. See, e.g., Safety Nat’l Cas.
Corp. v. Am. Special Risk Ins. Co., 99 F. App’x 41, 43 (6th Cir. 2004) (finding unripe a claim of
indemnification for fraudulent conveyance because, among other reasons, the underlying claim for
fraudulent conveyance had not yet been adjudicated); see also Armstrong v. Ala. Power Co., 667
F.2d 1385, 1388–89 (11th Cir. 1982) (affirming dismissal of indemnity suits as premature prior to
entry of judgment in underlying lawsuit); A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr.
Co., 559 F.2d 928, 932 (4th Cir. 1977) (holding indemnification issue not ripe prior to adjudication
of underlying claims).

Because the ripeness doctrine is discretionary, courts sometimes apply an exception for
indemnification claims that have no possibility of success, regardless of the merits of the
underlying claims. See, e.g., Cincinnati Ins. Co. v. Grand Pointe, LLC, No. 1:05-CV-161, 2006
WL 1806014, at *9 (E.D. Tenn. June 29, 2006) (collecting cases in support of the proposition that
“a court may grant summary judgment on the issue of indemnification if it can determine the
allegations in the complaint could under no circumstances lead to a result which would trigger the
duty to indemnify” (citations and internal quotation marks omitted)).
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 11

The Sixth Circuit has not analyzed the propriety of this exception, and we need not do so
now because, even if it is permissible for district courts to adjudicate indemnification claims with
no possibility of success prior to the adjudication of underlying tort claims, this is not such a case.

If Plaintiffs’ indemnification claims have no possibility of success, that would be because
Ohio law provides that only the tortfeasor employees, and not the parties injured by them, may
bring claims under Ohio Revised Code § 2744.07(B). The district court did an admirable job
analyzing Ohio court cases before holding that Ohio law does so provide. See Jackson v. City of
Cleveland, No. 1:15CV989, 2016 WL 3952117, at *2 (N.D. Ohio July 20, 2016). But the only
cases available to the district court were from the Ohio courts of appeal, as the Ohio Supreme
Court had yet to opine on the issue.

The judgments of Ohio appellate courts not being binding on the Ohio Supreme Court,
there remains a possibility that Plaintiffs’ indemnification claims could succeed: Plaintiffs would
need to win their underlying tort action and, while that action was pending, the Ohio Supreme
Court would need to adopt their interpretation of Ohio Revised Code § 2744.07(B). Although the
latter eventuality may seem remote, it is far from impossible and, as it happens, the Ohio Supreme
Court has accepted an appeal addressing this very issue. See Ayers v. Cleveland, 106 N.E.3d 65
(Ohio 2018) (Table).

Because it is not impossible for Plaintiffs to prevail on their indemnification claims, those
claims are not ripe for adjudication. As discussed above, in evaluating whether a claim is ripe,
courts should determine (1) whether a matter is “appropriate for judicial resolution” and
(2) whether the parties would undergo hardship “if judicial relief is denied” on their claim before
it ripens further. Young, 652 F.2d at 625. Neither factor supports finding the indemnification
claims are ripe here.

First, interpreting Ohio Revised Code § 2744.07(B) is best avoided unless necessary.
Federal courts generally avoid interpreting unsettled state law because state “courts are in the better
position to apply and interpret” their own jurisdiction’s law. Travelers Indem. Co. v. Bowling
Green Prof’l Assocs., PLC, 495 F.3d 266, 272 (6th Cir. 2007). As the Supreme Court said in
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 12

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941) and repeated in Louisiana
Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959):

Had we or they (the lower court judges) no choice in the matter but to decide what
is the law of the state, we should hesitate long before rejecting their forecast of
[state] law. But no matter how seasoned the judgment of the district court may be,
it cannot escape being a forecast rather than a determination.

Thibodaux, 360 U.S. at 27 (quoting Pullman, 312 U.S. at 499). Where, as here, adjudicating an
issue of state law is unnecessary because the litigation is in its early stages, and state law is
unsettled, the inappropriateness of deciding the issue in federal court weighs in favor of finding
the claim unripe for adjudication in federal court.

Second, that no harm will befall Cleveland if “judicial relief is denied” for the time being
also weighs in favor of finding the indemnification claims unripe. Young, 652 F.2d at 625. The
district court’s grant of Cleveland’s motions for judgment on the pleadings as to Plaintiffs’
indemnification claims did not release Cleveland from the litigation, as Plaintiffs still have Monell
claims outstanding against Cleveland. The only effect that denying Cleveland’s motions, or
holding them in abeyance, would have on the litigation would be to delay adjudication of the
indemnification claims until a later stage in the litigation. At that point, the district court may be
able to avoid interpreting Ohio Revised Code § 2744.07(B), because the Ohio Supreme Court may
already have done so. The district court should interpret Ohio law only if the Ohio Supreme Court
has not done so by the time the underlying § 1983 claims have been properly adjudicated on
remand, and if those claims are found to have merit.

The ripeness doctrine therefore requires that the indemnification claims not be adjudicated
on the merits at the pleading stage, given the unsettled condition of state law. Because “a dismissal
with prejudice operates as a rejection of the plaintiff’s claims on the merits,” the district court erred
in dismissing those claims with prejudice. Mich. Surgery Inv., LLC v. Arman, 627 F.3d 572, 575
(6th Cir. 2010) (quoting United States v. One Tract of Real Prop., 95 F.3d 422, 425–26 (6th Cir.
1996)).
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 13

B. Plaintiffs’ Motions to Substitute

Plaintiffs sought leave to amend their complaints to substitute the administrator of the
estates of Defendants Terpay, Staimpel, and Farmer as a party in place of those Defendants, as
they are now deceased. District courts “should freely give leave” to amend a complaint pre-trial
“when justice so requires.” Fed. R. Civ. P. 15(a)(2). One permissible reason to deny leave is the
“futility of [the] amendment[s].” Foman v. Davis, 371 U.S. 178, 182 (1962).

The district court denied leave to amend, reasoning that § 1983 claims brought in Ohio do
not survive the death of the tortfeasor, and, therefore, the requested amendments would be futile.6
On appeal, Defendants argue that the district court was correct, but also suggest an alternative
ground for affirming—that Plaintiffs did not timely present their claims to the estates of the
deceased Defendants. We address the survival and timeliness arguments in turn.

1. Survival of § 1983 Claims

Defendants first argue that the denial of Plaintiffs’ motions to amend should be affirmed
because § 1983 claims do not survive the death of the tortfeasor in Ohio.

42 U.S.C. § 1988(a) provides that in actions to protect civil rights, where “the laws of the
United States . . . are deficient in the provisions necessary to furnish suitable remedies and punish
offenses against law, the common law, as modified and changed by the constitution and statutes
of the State wherein the court having jurisdiction of such civil or criminal cause is held,” shall be
applied, “so far as the same is not inconsistent with the Constitution and laws of the United States.”

The Supreme Court has interpreted this statutory language as requiring a three-step process
for determining which jurisdiction’s procedural law, such as provisions concerning statutes of
limitations or the survival of claims, is used in § 1983 suits. See Robertson v. Wegmann, 436 U.S.
584, 588–89 (1978). First, a district court must determine whether there is an applicable federal
law that covers the issue, and, if there is, apply it. See id. Second, if there is no relevant federal
law, then the district court must determine what the appropriate rule is in the state where the district

6The district court also denied leave to amend on futility grounds with regard to Plaintiffs’ state-law claims
against the deceased Defendants, but Plaintiffs do not appeal that ruling.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 14

court sits. See id. at 588. Third, the district court must determine whether the law of that state is
“inconsistent with the Constitution and laws of the United States;” if there is no inconsistency, the
state law is used, but if inconsistency exists, a federal common-law rule is used. Id. at 588–89.

Because “[n]o federal statute or rule says anything about the survivorship of § 1983
claims,” Crabbs v. Scott, 880 F.3d 292, 294 (6th Cir. 2018), we turn to the relevant Ohio law,
which provides:

In addition to the causes of action which survive at common law, causes of
action for mesne profits, or injuries to the person or property, or for deceit or fraud,
also shall survive; and such actions may be brought notwithstanding the death of
the person entitled or liable thereto.

Ohio Rev. Code § 2305.21. Plaintiffs argued before the district court that their claims fall within
“injuries to the person,” while Defendants argued that “injuries to the person” encompasses only
physical injuries, and not the violation of rights alleged in this case. The district court agreed with
Defendants, citing a district court case holding that under Ohio law, § 1983 claims similar to those
brought by Plaintiffs did not involve “injuries to the person.” Tinney v. Richland Cty., No. 1:14
CV 703, 2014 WL 6896256, at *2 (N.D. Ohio Dec. 8, 2014), aff’d, 678 F. App’x 362 (6th Cir.
2017).

On appeal, Defendants again argue that Plaintiffs’ claims for malicious prosecution,
fabrication of evidence, and Brady violations cannot be characterized as “injuries to the person”
that survive the death of the tortfeasor. Therefore, they argue that Tinney controls the result here.
Defendants also argue that State ex rel. Crow v. Weygandt, 162 N.E.2d 845, 848 (Ohio 1959), an
Ohio Supreme Court case holding that state-law claims for malicious prosecution do not survive
the death of a party, means that Plaintiffs’ § 1983 claims for malicious prosecution also do not
survive. The Weygandt court based its holding on Ohio Revised Code § 2311.21, which provided:

Unless otherwise provided, no action or proceeding pending in any court
shall abate by the death of either or both of the parties thereto, except actions for
libel, slander, malicious prosecution, for a nuisance, or against a judge of a County
Court for misconduct in office, which shall abate by the death of either party.

This provision is still in effect, its language unamended since the Weygandt decision except for
one capitalization change. See Ohio Rev. Code § 2311.21. Finally, Defendants point to Stein-
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 15

Sapir v. Birdsell, 673 F.2d 165, 167 (6th Cir. 1982), a Sixth Circuit case recognizing the Weygandt
rule.

Neither Defendants’ reliance on Tinney nor their argument based on Weygandt is
persuasive. To begin with, the Sixth Circuit’s unpublished opinion affirming the district court in
Tinney is no longer good law. After the district court’s judgment in this case, Tinney was
superseded by Crabbs, a published opinion of this circuit that expressly rejected Tinney’s holding
and held instead that all § 1983 claims are subject to the forum state’s survival rules for personal
injury actions, regardless of the specific type of injury underlying the § 1983 claim. See Crabbs,
880 F.3d at 296.

It is immaterial that Crabbs addressed an unreasonable search claim under the Fourth and
Fourteenth Amendments, see id. at 293, whereas Plaintiffs’ claims here are for malicious
prosecution, fabrication of evidence, and Brady violations. Crabbs expressly disagreed with
Tinney, which did involve a malicious prosecution claim. The Tinney plaintiff had sued in Ohio;
therefore, his § 1983 claims were subject to Ohio survival rules just as Plaintiffs’ claims are here.
Noting that the Tinney court did not apply Ohio’s survival rule for personal injury actions to a
§ 1983 malicious prosecution claim, the Crabbs court announced that it was “part[ing] way with”
Tinney. Crabbs, 880 F.3d at 296. With that language, Crabbs rejected Tinney’s reasoning
pertaining to malicious prosecution claims.

If the explicit rejection of Tinney were not enough to defeat Defendants’ argument, the
Crabbs court’s more general discussion of its rationale would be. Although Crabbs involved an
unreasonable search claim, the reasoning applied to all § 1983 claims. See 880 F.3d at 296. In
explaining that all § 1983 claims must be classified together for purposes of determining what state
procedural rules apply, the Crabbs court cited Wilson v. Garcia, 471 U.S. 261 (1985), in which
the Supreme Court addressed what state statute of limitations should apply in § 1983 actions. See
Crabbs, 880 F.3d at 294–95. (After Wilson was decided, Congress enacted a federal statute of
limitations, codified at 28 U.S.C. § 1658.) Crabbs cited Wilson for three general propositions.
“First, the characterization of § 1983 as a cause of action is itself a question of federal law . . . .
Second, all § 1983 claims must be characterized in the same way . . . . Third, § 1983 actions are
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 16

best characterized as personal injury actions.” Crabbs, 880 F.3d at 294–95 (second emphasis
added) (citing Wilson, 471 U.S. at 269–70, 271–75, 280).

More specifically, the Crabbs court reasoned that all § 1983 claims must be treated the
same way for survival-of-claims purposes, just as they are for statute-of-limitations purposes. Id.
at 295. The court’s language could not be clearer: “the appropriate level at which to generalize a
§ 1983 claim under state law is as a personal injury action, sounding in tort, and nothing further.”
Id. at 296 (emphasis added). Therefore, although Weygandt and Ohio Revised Code § 2311.21
are still good law, after Crabbs, they do not establish a separate survival rule for malicious
prosecution claims brought under § 1983.

Our court’s 1982 decision in Stein-Sapir is not to the contrary. Although Defendants argue
that that opinion adopted the Weygandt rule, all Stein-Sapir did was apply Weygandt—and an Ohio
Court of Appeals decision extending Weygandt’s survival rule to libel and slander claims—to hold
that the plaintiff’s state-law defamation claims did not survive the defendant’s death. See Stein-
Sapir, 673 F.2d at 167. Stein-Sapir involved only state law and did not mention § 1983.

When hearing a direct appeal, this court evaluates the merits of the case based on the
current law and its interpretation, not the law and its interpretation existing when the district court
entered its judgment. See Chaz Concrete Co., LLC v. Codell, 545 F.3d 407, 409 (6th Cir. 2008).
After Crabbs, all claims brought under § 1983 are to be treated as actions sounding in personal
injury tort. Because Ohio Revised Code § 2305.21 provides that actions for personal injury survive
the death of the tortfeasor, and that statute does not conflict with the laws of the United States, see
Crabbs, 880 F.3d at 295, all § 1983 actions brought in Ohio survive the death of the tortfeasor.

Therefore, through no fault of its own because its ruling predated Crabbs, the district court
was in error as to its grounds for finding that the proposed amendments, substituting the
administrator of the estates of Terpay, Staimpel, and Farmer for those Defendants, would be futile.

2. Timeliness of Plaintiffs’ Claims Against the Estates

Defendants argue that we should affirm the district court on alternative grounds—namely,
that the claims against the estates were not timely brought. Proper adjudication of this issue
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 17

requires analysis of both Ohio and federal law. Defendants argue that Ohio estate law regarding
the timely filing of claims defines which entities have the capacity to be sued, while Plaintiffs
argue that those provisions are merely statutes of limitations. See Ohio Rev. Code §§ 2117.06,
2117.37.

The points of contention do not end there, however. If Plaintiffs are correct that Ohio estate
law merely establishes statutes of limitations, the parties also dispute whether those statutes or the
general Ohio statute of limitations applies to § 1983 suits. On the other hand, if Defendants are
correct that Ohio estate law defines which entities have the capacity to be sued, the parties also
disagree over whether federal courts hearing § 1983 actions are bound by that definition, as well
as whether an exception to that definition, provided in Ohio Revised Code § 2117.06(G), applies
to the facts of this case.

The district court did not address these issues, instead relying on its holding that the § 1983
claims did not survive the deaths of the deceased Defendants.7 “It is the general rule that a federal
appellate court does not consider an issue not passed upon below.” Lindsay v. Yates, 498 F.3d
434, 441 (6th Cir. 2007) (quoting United States v. Henry, 429 F.3d 603, 618 (6th Cir. 2005)). This
directive is not jurisdictional, however, and “a departure from this general rule may be warranted
when ‘the issue is presented with sufficient clarity and completeness and its resolution will
materially advance the progress of this already protracted litigation.’” Katt v. Dykhouse, 983 F.2d
690, 695 (6th Cir. 1992) (quoting Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445,
1461 (6th Cir. 1988)).

We will follow the general rule and decline to address these issues in the first instance.
These are thorny issues of first impression in this circuit, and because the district court has not yet
addressed them, we do not believe they are “presented with sufficient clarity and completeness”
for our review. Id.

7The district court did address timeliness with regard to Plaintiffs’ state-law claims, but Plaintiffs do not
challenge that analysis on appeal. The timeliness analysis required for the § 1983 claims differs from that required
for the state-law claims: the former involves a three-step analysis to determine the applicable law, as described in
section II(B)(1), supra. See Robertson, 436 U.S. at 588–89. The district court did not conduct this analysis.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 18

3. Conclusion

The district court erred in finding that Plaintiffs’ proposed amendments would be futile on
the ground that § 1983 claims brought in Ohio do not survive the deaths of the tortfeasors, and we
decline to address whether Defendants have presented an alternative ground on which the district
court’s denial of Plaintiffs’ motions to amend could be affirmed. Because applying the wrong
legal standard constitutes reversible error on abuse of discretion review, United States v. Arny, 831
F.3d 725, 730 (6th Cir. 2016), the district court’s denial of the motions to file amended complaints
is REVERSED and REMANDED for further proceedings.

C. Stoiker’s Motion for Summary Judgment

We next address the district court’s grant of summary judgment to Stoiker on the § 1983
claims that Stoiker violated Plaintiffs’ Fourteenth Amendment right to due process by withholding
exculpatory evidence, fabricating evidence, and conspiring to do the same, and Plaintiffs’ Fourth
Amendment right to be free of malicious prosecution.

If a police officer violates the Constitution, “42 U.S.C. § 1983 provides a civil remedy for
those” injured by the violation. Peffer v. Stephens, 880 F.3d 256, 263 (6th Cir. 2018). But officers
sued under the aegis of § 1983 are protected from liability by the doctrine of qualified immunity
“insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity does not apply if
(1) “on the plaintiff’s facts,” a constitutional violation occurred, and (2) the alleged violation was
of “clearly established constitutional rights of which a reasonable person would have known.”
Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002) (quoting Dickerson v. McClellan, 101
F.3d 1151, 1158 (6th Cir. 1996)).

The district court found that there was insufficient evidence for a reasonable jury to find
that Stoiker had committed any of the alleged constitutional violations. We address each of the
appealed determinations in turn.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 19

1. Constitutional Violations

a. Withholding Exculpatory Evidence

The Due Process Clause of the Fourteenth Amendment provides that no state may “deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. In Brady v.
Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Prosecutors are not the only state actors bound by Brady, and “police can commit
a constitutional deprivation analogous to that recognized in Brady by withholding or suppressing
exculpatory material.” Moldowan v. City of Warren, 578 F.3d 351, 379 (6th Cir. 2009).

Brady claims have three elements: “[1] the evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have
been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

The district court granted summary judgment to Stoiker on the ground that Plaintiffs had
failed to present evidence sufficient for a reasonable jury to find the second element—that Stoiker
had suppressed evidence. It did so for two reasons. First, it held that there was insufficient
evidence for a jury to find that Stoiker was involved with the unconstitutional activity at all, noting
that Vernon had never identified Stoiker as one of the officers involved.8 Second, even if Stoiker
were involved, the district court held, there was insufficient evidence that he was aware of any
exculpatory evidence, and an officer unaware of exculpatory evidence cannot suppress that
evidence.

8“The only evidence that points to Stoiker’s involvement are the signatures on the statement and the report.
However, even if those are Stoiker’s signatures, Plaintiff has not cited to any policy, practice, or procedure about the
meaning or effect of signature [sic]. Therefore, the Court is left to speculate as to what the signature meant.” Jackson
v. City of Cleveland, CASE NO. 1:15CV989, 2017 WL 3380456, at *3 (N.D. Ohio Aug. 4, 2017).
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 20

We disagree with the district court’s reasoning. Given the evidence in the record, although
a jury might ultimately find that Stoiker did not suppress evidence, it would not be unreasonable
in finding that he had.

Consider the following evidence. Vernon testified that Staimpel and another officer led
him into a room after he failed to identify Plaintiffs at a line-up and coerced him into signing a
false statement about that line-up. Staimpel testified at trial that (1) Stoiker was his partner and
(2) Stoiker was present for the line-up. Based on Staimpel’s testimony, a reasonable jury could
infer that (3) Stoiker was present during the post-line-up interview of Vernon and (4) Stoiker was
present when Vernon signed his false statement explaining his “fear” of Plaintiffs.

In addition, the record contains a police report, signed by Stoiker and dated the day that
Vernon testified he was coerced into signing a false statement by two detectives, detailing the
version of the line-up and subsequent interview that Vernon alleges were fabricated. The district
court is correct that the report does not say that Stoiker was involved in that line-up and interview,
but a jury is “allowed to make reasonable inferences from facts proven in evidence having a
reasonable tendency to sustain them,” Galloway v. United States, 319 U.S. 372, 396 (1943), and it
is reasonable to infer that a detective who signs a report was involved in the events recounted in
that report.

Because of this proof, a reasonable jury could find that Stoiker was present when Vernon
was coerced into signing the allegedly false statement, in which he claimed that he had failed to
identify Jackson and Bridgeman in the line-up because he was afraid of them. And if Stoiker was
present when Vernon was coerced into signing the allegedly false statement, he knew that Vernon
had not given fear of Plaintiffs as his true reason for not identifying them—in other words, that the
statement was false. That knowledge was exculpatory evidence. See Giglio v. United States, 405
U.S. 150, 154 (1972) (“When the reliability of a given witness may well be determinative of guilt
or innocence, nondisclosure of evidence affecting credibility falls within [Brady’s disclosure]
rule.” (citation and internal quotation marks omitted)). If Stoiker was present, he also knew that
detectives coerced Vernon’s statement, which was a related, but separate, piece of exculpatory
evidence. See id.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 21

In addition, a reasonable jury could find that Stoiker was aware of a third piece of
exculpatory evidence. While his possible awareness of this evidence is less clear-cut than of the
above-mentioned pieces of exculpatory evidence, it would not be unreasonable for a jury to infer
that Stoiker knew Vernon had said he had not seen Plaintiffs commit the crime with which they
were charged. Whether or not Stoiker was told by other officers that Vernon had not seen Plaintiffs
commit the murder, Vernon stated that he was asked at the line-up “if I could recognize anyone
there who was at the shooting” and that he answered that question in the negative.9 R. 99-3,
PageID 1236.

Stoiker and the district court interpret that question as asking whether Vernon recognized
anyone in the line-up. Vernon interpreted it as asking whether he had seen anyone in the line-up
commit the crime.10 If Vernon’s interpretation is correct, then the officers present—which a
reasonable jury could find included Stoiker—knew that Vernon was claiming he had not seen
Plaintiffs commit the crime when he answered “No” to their question. A reasonable jury could
find that Vernon, the only witness to the events who has testified to the contents of that
conversation, interpreted the question correctly.

As Stoiker did not disclose any of this evidence to prosecutors, a reasonable jury could find
that Stoiker suppressed exculpatory evidence in violation of Brady.

As to the third element of a Brady claim, a reasonable jury could find that Plaintiffs suffered
prejudice as a result of the alleged suppression. To show prejudice, Plaintiffs must show that the
allegedly suppressed evidence was “material;” in other words, “that there is a reasonable
probability that the suppressed evidence would have produced a different verdict.” Strickler, 527
U.S. at 280, 281. Because Vernon’s coerced statement formed the core of the prosecution’s case,
there is a reasonable likelihood that, had the juries in Plaintiffs’ trials known that that statement
was fabricated and coerced, or that Vernon had orally stated that he had not seen the shooting, the

9As mentioned in section I(A), supra, Vernon alternatively recalled that he may have been asked if “I see
anybody that I recognize up there.” R. 99-1, PageID 1190.
10Vernon later explained that he answered in the negative because “I didn’t seen happen [sic] on May 19,
1975.” R. 99-2, PageID 1233.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 22

juries would not have convicted Plaintiffs. Therefore, a reasonable jury could find all three
elements of a Brady claim satisfied.

b. Fabricating Evidence

The Due Process Clause of the Fourteenth Amendment is also “violated when evidence is
knowingly fabricated and a reasonable likelihood exists that the false evidence would have affected
the decision of the jury.” Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006) (citing
Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997)).

Stoiker presents two arguments for why summary judgment was appropriate on this issue.
First, he contends there was insufficient evidence that he was involved in the fabrication of
Vernon’s statement. Second, Stoiker argues there was insufficient evidence that the fabricated
statement affected the decision of the jury. The district court agreed with both of Stoiker’s
arguments.

Turning to the first argument, a reasonable jury could find, as discussed in section
II(C)(1)(a), supra, that Stoiker was in the room when Vernon was initially intimidated, left the
room with Staimpel, and then returned to the room with Staimpel, at which point Staimpel coerced
Vernon into signing the statement. This does not necessarily entail that Stoiker participated in the
creation of the false statement, but a reasonable jury could infer that Stoiker either drafted, or
assisted Staimpel in drafting, the false statement. If Stoiker was actively involved in the fabrication
of the false statement, he knowingly fabricated evidence.

As for the second argument, there is, in fact, sufficient evidence for a reasonable jury to
conclude that the false statement influenced the juries at Plaintiffs’ trials. True, as the district court
noted, although the statement was introduced in evidence by the defense at Jackson’s trial, it was
used only by defense counsel in an attempt to impeach Vernon’s testimony and “it is unclear
whether the jury in the Jackson trial had the statement while they were deliberating.” 11 Jackson
v. City of Cleveland, CASE NO. 1:15CV989, 2017 WL 3380456, at *3 (N.D. Ohio Aug. 4, 2017).

11Although the possibility is ultimately unnecessary to our holding on the fabrication-of-evidence claims,
we note that because Vernon’s statement was introduced in evidence at Jackson’s trial, a reasonable jury could infer
that the jury that convicted Jackson had access to the statement at some point in their deliberations.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 23

Also, the statement was not admitted in evidence at Bridgeman’s or Ajamu’s trial at all. And it is
fair to conclude, as the district court reasoned, that “Vernon’s live testimony,” not the statement,
“led to the conviction[s] in all three trials.” Id.

But the relevant question is not whether the fabricated evidence was shown to the jury; it
is whether the statement affected the decision of the jury. For example, a fabricated search warrant
affidavit, used to obtain evidence later shown to the jury, can form the basis for a fabrication-of-
evidence suit. See Webb v. United States, 789 F.3d 647, 670 (6th Cir. 2015). And fabricated
evidence that “is used as [the] basis for a criminal charge” can form the basis for a § 1983 claim
because, absent that evidence, there would have been no jury. Halsey v. Pfeiffer, 750 F.3d 273,
294 n.19 (3d Cir. 2014).

A reasonable jury in the present case could find that the fabricated statement impacted the
juries’ decisions in the criminal trials in at least two ways. First, the prosecutor testified that his
understanding of Vernon’s statement was based on the copy in the police report and that, if he had
known what had actually happened on the day of the line-up, he would have declined to prosecute:
he does not, as he put it, “believe in prosecuting innocent people.” R. 114-29, PageID 5350. The
prosecutor did not speak to Vernon prior to bringing charges, and so the false statement constituted
the entire basis for his understanding of Vernon’s involvement. If Staimpel and Stoiker had not
fabricated Vernon’s statement, therefore, charges would not have been brought, and, of course, a
jury that is never empaneled is a jury that does not return a guilty verdict.

A jury in the present case also could find that the falsified statement caused the criminal
verdicts because the statement coerced Vernon to testify in conformance with it. Unlike Staimpel’s
baseless threat to prosecute Vernon’s parents if Vernon failed to sign a statement saying that he
had seen Plaintiffs commit the crime, Vernon would have faced a real threat of prosecution for
perjury had his testimony conflicted with his earlier signed statement. See Osburn v. State, 7 Ohio
212, 214–15 (1835) (admitting as evidence of perjury a paper signed by the defendant).

A reasonable jury could therefore find both that Stoiker participated in the fabrication of
Vernon’s statement and that there is a reasonable probability the statement affected the juries at
Plaintiffs’ trials.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 24

c. Conspiracy to Withhold and Fabricate Evidence

To make out a claim for conspiracy to deprive them of their due process rights, Plaintiffs
must show “that (1) a single plan existed, (2) the conspirators shared a conspiratorial objective to
deprive the plaintiffs of their constitutional rights, and (3) an overt act was committed in
furtherance of the conspiracy that caused the injury.” Robertson v. Lucas, 753 F.3d 606, 622 (6th
Cir. 2014) (internal quotation marks omitted) (quoting Revis v. Meldrum, 489 F.3d 273, 290 (6th
Cir. 2007)).

For the reasons discussed above, a reasonable jury could find that Stoiker and Staimpel
planned to draft a false statement and coerce Vernon into signing that statement and that they
committed an overt act in furtherance of that plan. Further supporting the conspiracy claim, it
would not be unreasonable for a jury to infer that the detectives planned to withhold the existence
of their acts from prosecutors for the purpose of tipping the scales against Plaintiffs, as informing
prosecutors of the coercion would have rendered their actions meaningless.

However, the inquiry does not end there. We must also determine whether an individual
can be held liable for conspiracy when the alleged conspiracy was undertaken by agreement with
another individual or individuals employed by the same entity as the defendant.

The intracorporate conspiracy doctrine, which states that if “all of the defendants are
members of the same collective entity, there are not two separate ‘people’ to form a conspiracy,”
has been applied to 42 U.S.C. § 1985(3) by this court. Johnson v. Hills & Dales Gen. Hosp.,
40 F.3d 837, 839–40 (6th Cir. 1994) (quoting Hull v. Cuyahoga Valley Joint Vocational Sch. Dist.
Bd. of Educ., 926 F.2d 505, 510 (6th Cir. 1991)). Section 1985(3) creates a cause of action for a
conspiracy between two or more persons to deprive another of the equal protection of the laws.

We have also held that the doctrine applies in § 1985(2) suits. Doherty v. Am. Motors
Corp., 728 F.2d 334, 339 (6th Cir. 1984). 42 U.S.C. § 1985(2) creates a cause of action for a
conspiracy to, among other actions, obstruct justice or to intimidate a party, witness, or juror.

But this circuit has never decided whether the intracorporate conspiracy doctrine also
applies to suits under § 1983. See DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 615 (6th Cir. 2015)
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 25

(noting that “the Sixth Circuit has never held that the intracorporate conspiracy doctrine applies to
municipal government officials in a § 1983 action and the district courts within our circuit are split
on this question”). To determine whether there is a genuine dispute of material fact as to whether
Stoiker conspired to violate Plaintiffs’ constitutional rights, therefore, we must resolve this issue
of first impression.

We are aware of only one circuit, the Eleventh, that has squarely addressed the issue and
has determined that the intracorporate conspiracy doctrine applies in § 1983 actions as in § 1985
actions. See Grider v. City of Auburn, 618 F.3d 1240, 1261 (11th Cir. 2010); Rehberg v. Paulk,
611 F.3d 828, 854 (11th Cir. 2010). By contrast, we are aware of no circuit that has applied the
doctrine in § 1985 actions but declined to apply it in § 1983 actions.12

We join the Eleventh Circuit and hold that the intracorporate conspiracy doctrine applies
in § 1983 suits to bar conspiracy claims where two or more employees of the same entity are
alleged to have been acting within the scope of their employment when they allegedly conspired
together to deprive the plaintiff of his rights. See Grider, 618 F.3d at 1261–62; cf. Johnson, 40 F.3d
at 841 (“[W]hen employees act outside the course of their employment, they and the corporation
may form a conspiracy under 42 U.S.C. § 1985(3).”). We so hold because the considerations that
support applying the intracorporate conspiracy doctrine in § 1985 suits pertain equally to the
§ 1983 context, and we discern no logical distinction upon which to treat § 1983 conspiracy claims
differently. Cf. Hull, 926 F.2d at 509–10 (holding that the intracorporate conspiracy doctrine
applies to § 1985(3) claims and stating “that this court’s opinion in Doherty [which applied the
doctrine to § 1985(2)—not § 1985(3)—claims] is dispositive of this issue”). Recognizing that
district courts within this circuit have split on the question,13 we will explain why the reasons for
applying the doctrine to § 1983 outweigh the reasons for not doing so.

12Some courts have held that the doctrine does not apply in the civil rights context at all. See, e.g., Brever v.
Rockwell Int’l Corp., 40 F.3d 1119, 1126–27 (10th Cir. 1994).
13Compare Vaduva v. City of Xenia, No. 3:17-cv-41, 2017 WL 4773076, at *3 (S.D. Ohio Oct. 23, 2017)
(applying the intracorporate conspiracy doctrine in § 1983 suit); Gillespie v. City of Battle Creek, 100 F. Supp. 3d 623,
631–32 (W.D. Mich. 2015) (same); Wright v. Bloomfield Twp., No. 12-15379, 2014 WL 5499278, at *15–16 (E.D.
Mich. Oct. 30, 2014) (same); Pardi v. Cty. of Wayne, No. 12–12063, 2013 WL 1011280, at *14–15 (E.D. Mich. Mar.
14, 2013) (same); Audio Visual Equip. & Supplies, Inc. v. Cty. of Wayne, No. 06-10904, 2007 WL 4180974, at *5–6
(E.D. Mich. Nov. 27, 2007) (same); Adcock v. City of Memphis, No. 06-2109, 2007 WL 784344, at *4–5 (W.D. Tenn.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 26

The intracorporate conspiracy doctrine was recognized in antitrust and civil rights cases
based on the legal notion of corporations as “persons.” See Copperweld Corp. v. Indep. Tube
Corp., 467 U.S. 752, 769 n.15 (1984); Doherty, 728 F.2d at 339. When employees of a corporation
act to further the purposes of that “person,” principles from the law of agency dictate that those
employees be treated not as separate “persons” but as part of the same “person.” See Hull, 926
F.2d at 509–10; Doherty, 728 F.2d at 339. We have recognized the relevance of these principles
to suits against employees of local government entities as well as against employees of private
corporations. See Hull, 926 F.2d at 509–10. Furthermore, the Supreme Court has made clear that
municipalities are “persons” for purposes of § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 (1978).

Because the intracorporate conspiracy doctrine follows from the legal definition of
“person,” which includes local governments, the doctrine has been developed to deal with the
question whether there are two separate persons to form a conspiracy. See Hull, 926 F.2d at 510.
The doctrine’s application to other civil rights statutes has not been premised upon any factor
unique to those statutes. We therefore see no reason to decline to apply the doctrine to § 1983.
Section 1983 creates a cause of action against any “person” who deprives a plaintiff of his rights,
just like § 1985. Therefore, if § 1985 cannot be violated by an alleged conspiracy where the
alleged conspirators are all employees of the same entity acting within the scope of their
employment, neither can § 1983.

Furthermore, we decline to adopt the rationale that because “[§] 1985 is in its essence a
conspiracy statute[,] [while] [§] 1983 is not,” the intracorporate conspiracy doctrine applies to the
former but not the latter. Kinkus v. Vill. of Yorkville, 476 F. Supp. 2d 829, 840 (S.D. Ohio 2007).
Although § 1983 does not expressly contemplate a cause of action for conspiracy, once we have
recognized such a cause of action—which we have, see, e.g., DiLuzio, 796 F.3d at 615–16—the
question whether a conspiracy can exist where all alleged conspirators work for the same entity,

Mar. 13, 2007) (same); Turner v. Viviano, No. 04-CV-70509-DT, 2005 WL 1678895, at *13 (E.D. Mich. July 15,
2005) (same), with Tinney v. Richland Cty., No. 1:14 CV 703, 2015 WL 542415, at *12 (N.D. Ohio Feb. 10, 2015)
(declining to apply the doctrine in a § 1983 suit), aff’d on other grounds, 678 F. App’x 362 (6th Cir. 2017); Kinkus v.
Vill. of Yorkville, 476 F. Supp. 2d 829, 839–40 (S.D. Ohio 2007) (same), rev’d on other grounds, 289 F. App’x 86
(6th Cir. 2008).
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 27

and are alleged to have been acting in the scope of their employment, naturally arises. That inquiry
is identical under § 1983 and § 1985. After all, we did not apply the intracorporate conspiracy
doctrine in § 1985 actions on a theory that the text of that particular statutory provision demanded
it. Instead, we simply adopted a conspiracy jurisprudence that developed outside the civil rights
context. See Hull, 926 F.2d at 509.

Nor do we see any reason to limit application of the doctrine to cases in which a
municipality is alleged to have conspired with one or more of its employees, in contrast to cases
in which two or more employees are alleged only to have conspired with each other. We have
made clear that “members of the same legal entity cannot conspire with one another as long as
their alleged acts were within the scope of their employment.” Jackson v. City of Columbus, 194
F.3d 737, 753 (6th Cir. 1999) (emphasis added) (citing Johnson, 40 F.3d at 840), abrogated on
other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002); accord Hull, 926 F.2d at
510. In Hull, we applied the doctrine to bar the plaintiff’s § 1985(3) claim alleging conspiracy
against “a school district superintendent, the executive director of the district, and a school
administrator, all of whom [were] employees or agents of the Board [of Education].” 926 F.2d at
510. The plaintiff did not allege that the school board itself was a conspirator, but we noted that
“[s]ince all of the defendants [were] members of the same collective entity, there [were] not two
separate ‘people’ to form a conspiracy.” Id.

Finally, we have recognized an exception to the intracorporate conspiracy doctrine in
§ 1985(3) suits where the defendants were alleged to have been acting outside the scope of their
employment, see Johnson, 40 F.3d at 841, and we have indicated that the exception would apply
equally in the § 1983 context were we to apply the doctrine in § 1983 suits, see DiLuzio, 796 F.3d
at 616. Accordingly, the intracorporate conspiracy doctrine applies to § 1983, and we assume that
adopting the doctrine entails adopting the exception. Cf. DiLuzio, 796 F.3d at 616. But the scope-
of-employment exception is unsupported by the record here because Plaintiffs have alleged that
Stoiker and the other individual Defendants were acting “within the scope of their employment.”
R. 86, PageID 1018; No. 17-3843, R. 53, PageID 707.

Therefore, as a matter of law, Stoiker cannot be liable for conspiracy in violation of § 1983
where he is alleged to have conspired with other employees of the same government entity, in the
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 28

scope of their employment, to violate Plaintiffs’ rights. The district court’s grant of summary
judgment to Stoiker on the conspiracy claims is AFFIRMED.

d. Malicious Prosecution

The Fourth Amendment begins: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
U.S. Const. amend. IV. Amongst other protections, this guarantee affords people the right to be
free of unjust prosecution. See Mills v. Barnard, 869 F.3d 473, 479–80 (6th Cir. 2017).14

A malicious-prosecution claim has four elements: “(1) that a criminal prosecution was
initiated against the plaintiff and that the defendant ma[d]e, influence[d], or participate[d] in the
decision to prosecute; (2) that there was a lack of probable cause for the criminal prosecution;
(3) that, as a consequence of a legal proceeding, the plaintiff suffered a deprivation of
liberty . . . apart from the initial seizure; and (4) that the criminal proceeding must have been
resolved in the plaintiff’s favor.”15 Id. at 480 (alterations in original) (internal quotation marks
omitted) (quoting Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010)).

There being no dispute that Plaintiffs suffered a deprivation of liberty or that the criminal
proceedings were resolved in their favor, we need only address the first two elements.

14Although we now analyze constitutional claims for malicious prosecution under the Fourth Amendment,
“[p]rior to January 1994 . . . this circuit analyzed [such claims] as accruing under the Fourteenth rather than the Fourth
Amendment.” Spurlock v. Satterfield, 167 F.3d 995, 1006 (6th Cir. 1999) (citations omitted). We ceased doing so
after the Supreme Court held in Albright v. Oliver, 510 U.S. 266, 271, 273–75 (1994) that malicious-prosecution
claims must be asserted under the Fourth Amendment rather than the Fourteenth. In so holding, the Albright Court
recognized “the Fourth Amendment’s relevance to the deprivations of liberty that go hand in hand with criminal
prosecutions.” Id. at 274 (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)).
15There are two types of § 1983 claims, both sounding in the Fourth Amendment, that are sometimes referred
to as “malicious prosecution” claims. One is for the wrongful institution of legal process (which is the type most
properly called a “malicious prosecution” claim) and the other is for continued detention without probable cause. See
Cleary v. Cty. of Macomb, 409 F. App’x 890, 898 (6th Cir. 2011); see also Gregory, 444 F.3d at 747–49 (stating that
claims for continued detention without probable cause are not properly considered “malicious prosecution” claims,
but recognizing that courts’ use of terminology varies). Although Plaintiffs are not always clear as to their intended
theory of liability, they and Stoiker state the test for, and perform their analysis under, the wrongful institution of legal
process theory, and we will do the same.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 29

i. Stoiker Influenced or Participated in the Decision to Prosecute

The first element of the malicious-prosecution claim is met when an officer “could
reasonably foresee that his misconduct would contribute to an independent decision that results in
a deprivation of liberty” and the misconduct actually does so. Sykes, 625 F.3d at 316 (quoting
Higazy v. Templeton, 505 F.3d 161, 177 (2d Cir. 2007)). This element is met when an officer
includes “misstatements and falsehoods in his investigatory materials” and those materials
influence a prosecutor’s decision to bring charges. Id.

A reasonable jury could find that Stoiker’s misconduct influenced the decision to bring
charges against Plaintiffs for two reasons. First, Stoiker and Staimpel “[c]onsulted with [the
prosecutor] who issued papers charging [Plaintiffs] with [homicide].” R. 114-28, PageID 5321.
Although the record does not indicate the contents of that consultation, it is reasonable to infer that
it involved false statements about Vernon’s identification of Plaintiffs and that this consultation
influenced the prosecutor’s decision to bring charges against Plaintiffs.

Second, the prosecutor’s only knowledge of Vernon’s involvement when deciding to bring
charges was based on Vernon’s statement, a statement that a jury could reasonably find to have
been fabricated by Stoiker. And the prosecutor later testified that had he known about what
actually happened on the day of the line-up—because Stoiker and Staimpel had told him during
conversation, or because they had drafted an accurate statement for Vernon, or because Stoiker
had drafted an accurate report concerning that day’s events—the prosecutor would not have
proceeded to trial.

ii. There Was a Lack of Probable Cause for the Criminal Prosecution

When a grand jury returns an indictment against a defendant, this creates a “presumption
of probable cause,” which is rebuttable by showing that:

(1) [A] law-enforcement officer, in the course of setting a prosecution in motion,
either knowingly or recklessly ma[de] false statements (such as in affidavits or
investigative reports) or falsifie[d] or fabricate[d] evidence; (2) the false statements
and evidence, together with any concomitant misleading omissions, [we]re material
to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence,
and omissions d[id] not consist solely of grand-jury testimony or preparation for
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 30

that testimony (where preparation has a meaning broad enough to encompass
conspiring to commit perjury before the grand jury).

King v. Harwood, 852 F.3d 568, 587–88 (6th Cir. 2017).

As discussed above, a reasonable jury could find that Stoiker falsified or fabricated
evidence, and that the evidence did not consist solely of grand-jury testimony or preparation for
that testimony. Stoiker argues, however, that even if he fabricated Vernon’s false statement, that
statement could not have been material to the grand jury’s determination of probable cause, as it
was not presented to the grand jury. Although Vernon may have testified to the grand jury in
conformance with his fabricated statement, Stoiker argues, it was Vernon’s testimony, not the
earlier statement, that impacted the grand jury’s decision.

But a careful reading of King shows that fabricated evidence can be material to a grand
jury’s determination of probable cause without being presented to the grand jury. If only evidence
presented to a grand jury could be material to that grand jury’s decision, plaintiffs would be faced
with the Scylla and Charybdis of either admitting that the fabricated evidence was not material or
claiming that it was material because it was presented to the grand jury, thereby gracing the
fabricator with the absolute immunity afforded to grand jury testimony. See id. at 589.

Instead, plaintiffs can show that a fabrication was material to the grand jury’s determination
by showing “that the officer has made knowing or reckless false statements or has falsified or
fabricated evidence in the course of setting a prosecution in motion.” Id. Here, according to the
prosecutor, had Stoiker not fabricated Vernon’s statement, there would have been no grand jury.
But even had there been one, Vernon would not have testified falsely before it. Stoiker’s
fabrication was therefore material to the grand jury’s determination because it “was material to the
ultimate prosecution” of Plaintiffs.16 Id. at 587–88.

16Stoiker does not argue that there was sufficient evidence to find probable cause to prosecute Plaintiffs
absent Vernon’s testimony.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 31

2. Qualified Immunity

The statute now codified at 42 U.S.C. § 1983 was originally passed in 1871. It was not
until the second half of the twentieth century that the Supreme Court recognized that § 1983
admitted of an implicit doctrine, born of the common law, known as qualified immunity. See
Pierson v. Ray, 386 U.S. 547, 555, 557 (1967). Since then this doctrine has grown considerably,
but not without its critics. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor,
J., dissenting) (arguing that a “one-sided approach to qualified immunity transforms the doctrine
into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth
Amendment”). Qualified immunity has outgrown its original justifications, which were “rooted
in historical analogy” and “based on the existence of common-law rules in 1871.” Wyatt v. Cole,
504 U.S. 158, 170 (1992) (Kennedy, J., concurring).

Responding to the many and varied suits brought under § 1983, the judiciary recrafted that
limited version of the doctrine of qualified immunity in an effort to protect public officials “from
undue interference with their duties and from potentially disabling threats of liability.” Elder v.
Holloway, 510 U.S. 510, 514 (1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)).
We therefore no longer “attempt[] to locate [the qualified immunity] standard in the common law
as it existed in 1871,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring), but
instead attempt to determine whether a defendant, by his conduct, “violate[d] clearly established
statutory or constitutional rights of which a reasonable person would have known,” Harlow, 457
U.S. at 818.

At issue in this appeal is whether, in 1975, the constitutional rights allegedly violated by
Stoiker were sufficiently clearly established to deprive him of the protection of qualified immunity.
It is a plaintiff’s burden to show that the right at issue was clearly established. Harris v. Klare,
902 F.3d 630, 637 (6th Cir. 2018). Although the Supreme Court “do[es] not require a case directly
on point for a right to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (alteration in
original) (internal quotation marks omitted) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015)). In examining “existing precedent,” “we may rely on decisions of the Supreme Court,
decisions of this court and courts within this circuit, and in limited instances, on decisions of other
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 32

circuits.” Spurlock v. Satterfield, 167 F.3d 995, 1006 (6th Cir. 1999) (citations omitted); accord
Hearring v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013).

The Supreme Court has recognized “that officials can still be on notice that their conduct
violates established law even in novel factual circumstances” and has “rejected a requirement that
previous cases be ‘fundamentally similar’” to the facts in a case to render qualified immunity
inapplicable. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v. Lanier, 520 U.S.
259, 263 (1997)); see also id. at 753–54 (Thomas, J., dissenting) (“Certain actions so obviously
run afoul of the law that an assertion of qualified immunity may be overcome even though court
decisions have yet to address materially similar conduct.” (internal quotation marks omitted)).
And we have noted that “‘[g]eneral statements of the law’ are capable of giving clear and fair
warning to officers even where ‘the very action in question has [not] previously been held
unlawful.’” Smith v. Cupp, 430 F.3d 766, 776–77 (6th Cir. 2005) (second alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

a. Withholding Exculpatory Evidence

In 1975, it was clearly established law that prosecutorial withholding of exculpatory
evidence violates a criminal defendant’s Fourteenth Amendment right to due process. See Brady
v. Maryland, 373 U.S. 83, 86–87 (1963). Multiple circuits had also recognized by that time that
“Brady-derived” claims could be based on the conduct of law-enforcement officers—as distinct
from prosecutors—who had allegedly withheld exculpatory evidence. See Clarke v. Burke,
440 F.2d 853, 855 (7th Cir. 1971) (“This is not to say that there can never be a due process violation
if the prosecutor does not know that the police has in its possession evidence possibly favorable to
the defendant . . . . It has been held . . . that knowledge of the police is knowledge of the prosecutor
. . . .” (citations omitted)); Smith v. Florida, 410 F.2d 1349, 1351 (5th Cir. 1969) (“[I]t makes no
difference if the withholding is by the prosecutor or by officials other than the prosecutor.” (citing
Barbee v. Warden, Md. Penitentiary, 331 F.2d 842 (4th Cir. 1964))); Barbee, 331 F.2d at 846; cf.
Jackson v. Wainwright, 390 F.2d 288, 295, 298 (5th Cir. 1968) (noting that “lower federal courts”
applying Brady “ha[d] emphasized the harm to the defendant rather than the prosecutor’s motive
in failing to disclose exculpatory evidence” and finding a violation of the “duty to disclose . . .
exculpatory statements” where “there was no evidence of the prosecutor’s bad faith or of
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 33

overreaching by the prosecution” (emphasis added)); Curran v. Delaware, 259 F.2d 707, 713 (3d
Cir. 1958) (finding a violation of the Fourteenth Amendment when a police officer perjured
himself at trial, regardless of whether the prosecutor was aware of the perjury).

In Barbee, decided the year after Brady, the Fourth Circuit addressed the habeas claim of
a man who argued his conviction violated due process because law-enforcement officers had not
disclosed the existence of ballistics and fingerprint reports that “cast grave doubt upon” his guilt.
Barbee, 331 F.2d at 844. Responding to the state’s argument that the man was required, and had
failed, to show that the prosecutor knew about the reports, the court stated:

Nor is the effect of the nondisclosure neutralized because the prosecuting attorney
was not shown to have had knowledge of the exculpatory evidence. Failure of the
police to reveal such material evidence in their possession is equally harmful to a
defendant whether the information is purposely, or negligently, withheld. And it
makes no difference if the withholding is by officials other than the prosecutor. The
police are also part of the prosecution, and the taint on the trial is no less if they,
rather than the State’s Attorney, were guilty of the nondisclosure. If the police
allow the State’s Attorney to produce evidence pointing to guilt without informing
him of other evidence in their possession which contradicts this inference, state
officers are practicing deception not only on the State’s Attorney but on the court
and the defendant . . . . If the police silence as to the existence of the reports resulted
from negligence rather than guile, the deception is no less damaging.
The duty to disclose is that of the state, which ordinarily acts through the
prosecuting attorney; but if he too is the victim of police suppression of the material
information, the state’s failure is not on that account excused.

Id. at 846 (footnotes omitted).

The above cases, decided prior to Plaintiffs’ trials, make clear that the duty to disclose
evidence falls on the state as a whole and not on one officer of the state particularly, and it was
therefore clearly established by the time of those trials that Stoiker had a Fourteenth Amendment
obligation to disclose exculpatory evidence.

It was also clearly established that impeachment evidence, such as the fact that a witness
was coerced into making a fabricated statement, qualifies as exculpatory. See Giglio v. United
States, 405 U.S. 150, 153–55 (1972) (holding that evidence that the government had procured an
informant’s testimony by suggesting he could escape prosecution through cooperating was
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 34

“material” evidence “affecting credibility” that should have been disclosed to the defense under
Brady).

Stoiker argues that a Seventh Circuit case shows that it is not clearly established even now
that officers are under a Brady obligation to disclose their own or fellow officers’ fabrication of
evidence. In Saunders-El v. Rohde, 778 F.3d 556, 558 (7th Cir. 2015), the plaintiff sued police
officers under Brady, alleging that the officers failed to disclose that they had severely beaten the
plaintiff and planted his blood at a crime scene. The Seventh Circuit held that the plaintiff had not
alleged a violation of Brady because “Brady does not require the creation of exculpatory evidence,
nor does it compel police officers to accurately disclose the circumstances of their investigations
to the prosecution.” Id. at 562.

Even if we were bound by Saunders-El, which we are not, it would not foreclose our
holding. Because Brady and its progeny are concerned only with ensuring that a defendant
receives a fair trial, “Brady is concerned only with cases in which the government possesses
information which the defendant does not.” United States v. Graham, 484 F.3d 413, 417 (6th Cir.
2007) (citation omitted). And so if a defendant knows at the time of trial that the government has
fabricated evidence, as in Saunders-El,17 officers do not violate Brady by failing to tell prosecutors
that evidence has been fabricated.18 Had Plaintiffs argued that Stoiker violated Brady only by
failing to disclose that Vernon’s statement was inaccurate, Stoiker’s reliance on Saunders-El might
be appropriate, as Plaintiffs already knew that Vernon’s statement was inaccurate. But Plaintiffs
did not know that Vernon’s statement had been coerced, and that fact could have been used to
impeach Vernon’s testimony at trial. Therefore, Stoiker had an obligation to disclose that fact to
Plaintiffs.

Finally, as discussed in section II(C)(1)(a), supra, an additional piece of exculpatory
evidence that Stoiker may have possessed was the knowledge of Vernon’s un-coerced statement

17Indescribing the circumstances of the alleged fabrication of crime-scene evidence underlying his Brady
claim, the Saunders-El plaintiff indicated that he had known about the fabrication all along. See Saunders-El, 778 F.3d
at 558.
18This does not necessarily entail that such a situation would involve no other constitutional violations, of
course.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 35

to Terpay and Farmer that he had not seen the shooting at all. That statement was exculpatory
evidence separate from the fact that Vernon’s signed statement was false, and there is no evidence
that Plaintiffs knew of Vernon’s exculpatory statement. Therefore, even if Saunders-El were
controlling, we would hold that Plaintiffs had alleged a violation of clearly established rights with
regard to Stoiker’s alleged withholding of exculpatory evidence of which Plaintiffs were not
aware.

Stoiker is not entitled to qualified immunity on the withholding-of-evidence claims.

b. Fabricating Evidence

It is difficult to countenance any argument that a law-enforcement officer in 1975 would
not be “on notice [his] conduct [was] unlawful” when coercing a witness into perjuring himself in
a capital trial. Hope, 536 U.S. at 739 (citation omitted). The obvious injustice inherent in
fabricating evidence to convict three innocent men of a capital offense put Stoiker on notice that
his conduct was unlawful. Cf. id. at 745 (stating, in evaluating qualified immunity in the Eighth
Amendment context, that “[t]he obvious cruelty inherent in [tying a prisoner to a hitching post “for
an extended period of time in a position that was painful, and under circumstances that were both
degrading and dangerous”] should have provided respondents with some notice that their alleged
conduct violated [the prisoner’s] constitutional protection against cruel and unusual punishment”).

More concretely, as far back as 1935, the Supreme Court recognized that the introduction
of fabricated evidence violates “the fundamental conceptions of justice which lie at the base of our
civil and political institutions.” Mooney v. Holohan, 294 U.S. 103, 112 (1935) (citing Hebert v.
Louisiana, 272 U.S. 312, 316 (1926)). And in 1942, the Supreme Court held that when a witness
perjures himself because of threats from police officers, the defendant suffers “a deprivation of
rights guaranteed by the Federal Constitution.” Pyle v. Kansas, 317 U.S. 213, 216 (1942).

The only difference between those cases and the present one is that those cases involved
the use of fabricated evidence at trial, whereas this one involves the use of fabricated evidence to
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 36

affect a jury in a manner other than by introducing the evidence at trial. 19 However, we have
recognized that a Fourth Amendment claim based on the fabrication of evidence does not require
that “false testimony [have been] given at trial.” Spurlock, 167 F.3d at 1007. And we can see no
principled distinction, for purposes of qualified immunity, between such a claim and Plaintiffs’
claims here that they were deprived of their Fourteenth Amendment due process rights through the
use of fabricated evidence. The alleged misconduct here is the use of the falsified statement to
procure testimony in conformance with it—the same type of misconduct that we have previously
found supported recovery for a constitutional tort, irrespective of the stage at which the fabrication
tainted the proceeding. See id.

As far as clearly established law in 1975 is concerned, several months before the events at
issue in this case, this court stated that Mooney “made it clear that the Fourteenth Amendment right
to due process prohibits a knowing and deliberate use by a state of perjured evidence in order to
obtain a conviction.” Burks v. Egeler, 512 F.2d 221, 224 (6th Cir. 1975). More recently, we have
cited Brady, Pyle, and Mooney in finding that a defendant officer could not “seriously contend that
a reasonable police officer would not know that [his] actions [including fabricating evidence] were
inappropriate and performed in violation of an individual’s constitutional . . . rights.” Spurlock,
167 F.3d at 1005–06 (also citing Albright v. Oliver, 510 U.S. 266, 274 (1994)). In Spurlock (a
malicious-prosecution case), the defendant argued that Albright, and the Sixth Circuit case
explicitly finding that malicious prosecution violated clearly established rights, had been decided
after his conduct and therefore did not put him on notice. See Spurlock, 167 F.3d at 1006 n.19
(discussing generally Albright and Smith v. Williams, 78 F.3d 585, 1996 WL 99329 (6th Cir. 1996)
(unpublished table opinion)). Rejecting that argument, we stated that “the fundamental principle
that an individual has a constitutional right to be free from malicious prosecution . . . was clearly
established well before either of [the] cases [cited by the defendant] was decided.” Id. The
reasoning in Spurlock is sound, and we follow it in holding that Stoiker was on notice in 1975 that
it was unlawful for him to fabricate evidence.

19Although we assume for the purpose of this analysis that the allegedly fabricated evidence did not affect
the proceedings through being used at trial, we again note that Vernon’s statement was used by defense counsel at
Jackson’s trial, and a reasonable jury could find that the statement was considered by Jackson’s jury in some way.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 37

Stoiker is not entitled to qualified immunity on the fabrication-of-evidence claims.

c. Malicious Prosecution

Stoiker argues that he is entitled to qualified immunity because Plaintiffs “fail to identify
a pre-1975 case that would clearly establish that a police officer could be held liable for malicious
prosecution where he did not actively participate in the prosecution [and] did not testify before the
grand jury or at trial.” Stoiker Br. at 51. Stoiker’s argument admits of two interpretations, one of
which is possibly valid but has false premises and the other of which has true premises but is
invalid.

Stoiker might be arguing that the state of malicious prosecution law in 1975 was in flux
and that it was not clear at that time that he could be liable under a malicious prosecution cause of
action. That may be true, but it does not follow that he is protected by qualified immunity.
Whether a defendant is protected by qualified immunity turns not on whether the defendant was
on notice that his actions satisfied the elements of a particular cause of action, but instead on
whether the defendant was on notice that his actions violated the laws of the United States.
Recently, when presented with a similar argument to Stoiker’s, we responded:

[The defendant] spends a considerable portion of his brief illustrating why
it is not clear that he should be liable for malicious prosecution, thus reasoning that
he is entitled to qualified immunity. Yet, his claim that the contours of our
jurisprudence concerning malicious prosecution are not entirely clear misses the
point. Our inquiry is whether [the defendant’s] alleged actions—arresting and
detaining [the plaintiff] based on false pretenses and then seeking an arrest warrant
based on these false statements—violated [the plaintiff’s] clearly established
constitutional rights. We conclude that they did.

Miller v. Maddox, 866 F.3d 386, 395 (6th Cir. 2017), cert. denied, 138 S. Ct. 2622 (2018). In
short, “the sine qua non of the ‘clearly established’ inquiry is ‘fair warning,’” Baynes v. Cleland,
799 F.3d 600, 612–13 (6th Cir. 2015) (quoting Hope, 536 U.S. at 741), and we ask only “whether
it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted,” id. at 610 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 38

Stoiker’s argument may, on the other hand, be that it was not clear in 1975 that an officer
who fabricated evidence but did not testify for the prosecution had violated the laws of the United
States. If this were true, he would be protected by qualified immunity. It is not, and he is not.

For Plaintiffs’ claims to survive summary judgment, it must have been clearly established
that where an officer fabricates evidence against a defendant and then withholds exculpatory
evidence from the prosecution, but does not testify at trial or a grand jury hearing, he is
“influenc[ing]” the decision to initiate the prosecution in a way that violates the defendant’s
constitutional rights. Mills v. Barnard, 869 F.3d 473, 480 (6th Cir. 2017).

Stoiker cites no case requiring testimony as an element of a § 1983 claim for malicious
prosecution and no case suggesting that testifying is required in order to influence the decision to
prosecute. To the contrary, this court held long before 1975 that if officers arrested a suspect
without a warrant (in violation of state law), and “subjected [that suspect] to fraudulent trial in a
criminal case” that resulted in wrongful conviction, the officers caused the suspect “a deprivation
of [her] liberty without due process of law.” McShane v. Moldovan, 172 F.2d 1016, 1019 (6th Cir.
1949). The court in McShane made no mention of whether the officers had testified against the
suspect, and with good cause: the crux of the violation is the institution of judicial processes
without probable cause, which does not require a testimonial act.

In conjunction with the cases cited in section II(C)(2)(b), supra, McShane is sufficient to
have clearly established before May 1975 that an officer need not testify in order to violate a
defendant’s right to due process. That the phrase “malicious prosecution” was not used in that
case to describe the cause of action is immaterial; what matters are the actions allegedly taken by
Stoiker, not the name we give to the claim used to seek redress for those actions. Stoiker is
therefore not entitled to qualified immunity on the malicious-prosecution claims.

3. Conclusion

For the foregoing reasons, we REVERSE the district court’s grant of summary judgment
to Stoiker as to the Fourteenth Amendment claims for fabrication of evidence and for withholding
of exculpatory evidence in violation of Brady, and the Fourth Amendment claims for malicious
prosecution. But we AFFIRM the grant of summary judgment as to the conspiracy claims.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 39

D. Cleveland’s Motion for Summary Judgment

The cause of action created by § 1983 may be exercised only against a “person
who . . . causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. The Supreme Court has interpreted the word “person”
broadly, and certain polities, including municipalities, are considered persons for purposes of
§ 1983 liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

Although “person” has been given a wide meaning under § 1983, when the person is a
municipality, liability attaches only under a narrow set of circumstances: “A municipality may not
be held liable under § 1983 on a respondeat superior theory—in other words, ‘solely because it
employs a tortfeasor.’” D’Ambrosio v. Marino, 747 F.3d 378, 388–89 (6th Cir. 2014) (quoting
Monell, 436 U.S. at 691). Instead, a plaintiff must show that “through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.” Alman v. Reed, 703 F.3d 887,
903 (6th Cir. 2013) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)). A plaintiff
does this by showing that the municipality had a “policy or custom” that caused the violation of
his rights. Monell, 436 U.S. at 694.

There are four methods of showing the municipality had such a policy or custom: the
plaintiff may prove “(1) the existence of an illegal official policy or legislative enactment; (2) that
an official with final decision making authority ratified illegal actions; (3) the existence of a policy
of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence
of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citation
omitted).

Plaintiffs argue that they have provided evidence sufficient to make out a Monell claim
under the first theory, as GPO 19-73 caused the violation of their Brady rights, and the third theory,
as Cleveland’s failure to train its officers in Brady caused the violation of their Brady rights.
Cleveland disagrees, as did the district court.20

20Plaintiffsalso argue that they have a third Monell claim based on Cleveland’s failure to adopt an adequate
policy to prevent Brady violations. The district court ruled against Plaintiffs on this theory, finding that they had not
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 40

1. Official Policy

“[T]o satisfy the Monell requirements a plaintiff must ‘identify the policy, connect the
policy to the city itself and show that the particular injury was incurred because of the execution
of that policy.’” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) (quoting
Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987)).

When proceeding under the first theory of Monell liability, under which a plaintiff must
show an official policy or legislative enactment, the plaintiff must show that there were “formal
rules or understandings—often but not always committed to writing—that [were] intended to, and
[did], establish fixed plans of action to be followed under similar circumstances consistently and
over time.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986) (emphasis added).

Plaintiffs argue that GPO 19-73 reflects just such a policy: it was a formal rule; it was
promulgated by Cleveland; and it was illegal because it authorized Brady violations. Cleveland
agrees that GPO 19-73 was a policy and that it was promulgated by Cleveland but argues that GPO
19-73 is consistent with Brady and, therefore, could not cause Brady violations.21

GPO 19-73 read in pertinent part as follows:

TO THE MEMBERS OF THE DEPARTMENT
In a letter to this Department, County Prosecutor John T. Corrigan has defined the
legal rights of defense attorneys and courts to statements, reports and other items
in criminal cases. His letter, as a part of this order, shall be considered an integral

established that Cleveland had failed to adopt adequate policies to train officers in Brady’s requirements. Jackson v.
City of Cleveland, CASE NO. 1:15CV989, 2017 WL 3336607, at *4 (N.D. Ohio Aug. 4, 2017). We decline to analyze
this theory separately. Plaintiffs cite no Sixth Circuit or Supreme Court case in support of their theory that they have
a Monell claim—separate from their failure-to-train claim—based on Cleveland’s unconstitutional failure to adopt a
policy. Instead, the relevant cases they cite are failure-to-train cases. See City of Canton v. Harris, 489 U.S. 378, 391
(1989); Gregory v. City of Louisville, 444 F.3d 725, 755 (6th Cir. 2006); Miller v. Calhoun Cty., 408 F.3d 803, 816–
17 (6th Cir. 2005). That makes sense: the harm alleged and the analysis required under the failure-to-train theory are
functionally indistinguishable from the harm Plaintiffs allege and the analysis they wish us to conduct under the
failure-to-adopt-a-policy theory. Indeed, the district court stated that to prevail on their failure-to-adopt theory,
Plaintiffs needed to show Cleveland was deliberately indifferent to the high likelihood of violations in the absence of
a policy. See Jackson, 2017 WL 3336607, at *4 (citing Miller, 408 F.3d at 816–17). As we discuss below, Plaintiffs
must make the same showing for their failure-to-train claim.
21Cleveland also argues that Plaintiffs cannot show that GPO 19-73 caused any Brady violations because
they cannot demonstrate any Brady violations to begin with. As discussed in section II(C)(1)(a), supra, that argument
is unavailing.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 41

part of criminal case preparations procedures and all members shall comply with
its provisions.

R. 101-7, PageID 1630.

The letter from the County Prosecutor, incorporated into GPO 19-73, read in pertinent part
as follows:

The Ohio Supreme Court has recently promulgated Criminal Rules of
Procedure . . . . Particularly, Rule 16 is going to be the concern of police
departments and prosecutors.
....
NO POLICE DEPARTMENT IS REQUIRED OR SHALL GIVE TO DEFENSE
COUNSEL AND/OR ANY COURT ANY RECORD, PAPER, STATEMENT,
REPORT OR TANGIBLE OBJECT OF A CRIMINAL CASE.
Under proper circumstances under this rule, by application to the Prosecuting
Attorney and/or the court, the defense counsel may be entitled to the following:

1. Statement of a defendant or co-defendant, written, recorded, or a
summary of an oral statement.
2. Defendant’s prior felony record.
3. Inspection of [physical evidence] material to the preparation of the
defense or intended for use by the Prosecuting Attorney as evidence.
4. Reports of results of physical or mental examinations, scientific tests
or experiments.
5. Names and addresses of witnesses.
6. Evidence favorable to the defendant.

EXCEPTION TO THE FOREGOING:
The foregoing does not authorize the discovery or the inspection of reports,
memoranda, or other internal documents made by the Prosecuting Attorney or his
agents (police departments are his agents) in connection with the investigation or
prosecution of the case, or of statements made by witnesses or prospective witnesses
to state agents.

Id. (emphases added).

Plaintiffs argue that GPO 19-73 is appropriately read as providing that defendants are
generally entitled to favorable evidence, but that the entitlement does not apply if the favorable
evidence is in the form of witness statements. The individual Defendants were therefore acting in
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 42

conformance with GPO 19-73 when they failed to turn over to prosecutors Vernon’s un-coerced,
exculpatory statement that he had not seen the shooting, even though this withholding violated
Plaintiffs’ Brady rights.

In rebuttal, Cleveland argues, first, that the language of GPO 19-73 did not permit officers
to withhold exculpatory evidence from prosecutors, and, second, that even if it did, it must be read
in conjunction with other rules by which officers were bound in order to determine whether
Cleveland had a policy of permitting the withholding of exculpatory evidence from prosecutors.

Because a city may be liable under Monell for a policy of permitting constitutional
violations regardless of whether the policy is written, see Pembaur, 475 U.S. at 480–81, we ask
whether GPO 19-73 and the other rules were inconsistent with a policy of withholding evidence
in violation of Brady. If they were not inconsistent, then a genuine issue of material fact exists as
to whether Cleveland had such a policy, and summary judgment was improper on Plaintiffs’ first
Monell theory.

a. The Text of GPO 19-73

Cleveland notes that the only language in GPO 19-73 discussing officers’ disclosure
obligations simply made it clear that they were not permitted to give any physical evidence directly
to a defendant; it did not say officers were permitted to withhold exculpatory evidence from
prosecutors. Under this reading of GPO 19-73, the purpose of the order was to ensure that officers
did not give evidence directly to defendants and, perhaps as something of an addendum, let officers
know what prosecutors might have to do with the evidence officers gave them. The section
permitting disclosure of exculpatory witness statements, after all, argues Cleveland, was prefaced
by the statement that “by application to the Prosecuting Attorney and/or the court, the defense
counsel may be entitled” to various evidence, and that language appears to concern the interaction
between prosecutors and defendants, not officers and prosecutors.

Cleveland’s interpretation of GPO 19-73 may be plausible, but it is not the only reasonable
interpretation. The incorporated letter from the County Prosecutor informed Cleveland police
officers that “Rule 16 is going to be the concern of police departments and prosecutors,” not just
prosecutors. (emphasis added). The incorporated letter recreated in part the text of Rule 16, which
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 43

dealt only with what sorts of evidence required disclosure, not with who would do the disclosing.
That GPO 19-73 told officers that Rule 16 was their concern and provided the text of that Rule,
which described which evidence must be disclosed, could suggest that GPO 19-73 was
promulgated for the purpose of ensuring officers knew what particular evidence they had to
disclose to prosecutors so that the prosecutors could then disclose that evidence to the defense.
Under this reading, GPO 19-73 did more than simply inform officers that they should not give
evidence directly to defendants; it also served as the directive to officers as to what evidence they
should, and should not, give to prosecutors. Particular to the last point, the “EXCEPTION TO
THE FOREGOING” provision could be read to direct officers not to turn over to prosecutors the
documents described in that provision, which included “statements made by witnesses or
prospective witnesses to state agents.”

Therefore, one reasonable reading of GPO 19-73 is that it (1) spoke to police officers about
their disclosure obligations and (2) informed them that they did not need to disclose exculpatory
witness statements to the Prosecutor’s Office. Because GPO 19-73 can be read as consistent with
a policy of not disclosing exculpatory witness statements, we turn to the other written rules to see
whether any of those foreclosed such a policy.

b. Other Rules

Cleveland’s second argument for why a reasonable jury could not read GPO 19-73 as
embodying a policy of allowing officers to withhold exculpatory witness statements from
prosecutors is stronger, but ultimately unavailing. Instead of looking at GPO 19-73 in a vacuum,
Cleveland urges us to consider the text of GPO 19-73 in the context of other rules and regulations.
These other sources fall into two groups: sections of the Division of Police’s Manual of Rules and
the full text of Rule 16.

i. The Manual

The Manual contained a number of rules that were applicable to all Cleveland police
officers in 1975. Cleveland points to four rules as requiring, when read in conjunction with GPO
19-73, that officers disclose exculpatory witness statements to prosecutors. While all laudable,
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 44

each of these policies can, however, reasonably be interpreted as consistent with a reading of GPO
19-73 that permitted officers to withhold exculpatory witness statements from prosecutors.

Rule 14
Case Preparation and Fraud Unit
....
(2) The officer in charge shall cause statements to be taken from persons
brought to the Unit in the course of criminal investigations; and shall see that such
statements are properly filed and preserved. These statements shall be available
only to the officers and members of the Division of Police who are interested in the
presentation of a particular case, to the office of the County Prosecutor or the Law
Department of the City of Cleveland. Under no circumstances shall they be given
or exhibited to any other person without the written consent of the Chief of Police.
R. 102-2, PageID 1910–11.

Rule 14 only applied to statements given by persons brought to the Case Preparation and
Fraud Unit, and there was no requirement that all witnesses be brought to that unit when giving a
statement.22 Nor did it require officers to affirmatively disclose exculpatory statements to
prosecutors; it required only that detectives make statements available. This reading is consistent
with testimony that it was the practice of Cleveland detectives to withhold evidence not contained
in arrest reports, witness forms, or written statements unless it was specifically requested by
prosecutors.

Rule 66 [No Title]
(1) Officers and members prosecuting persons charged with a crime shall
thoroughly familiarize themselves with all of the facts and details concerning such
case, so that all of the evidence may be properly presented to the court.

Id. at PageID 1941.

Rule 66 said nothing about disclosure of evidence to prosecutors, much less exculpatory
evidence. More importantly, it only required familiarity with the facts and details of a case insofar
as such familiarity was required to “properly present” those facts to a court. As discussed above,
GPO 19-73 can reasonably be interpreted as not requiring officers to disclose exculpatory witness

22Vernon does not appear to have been brought to the Case Preparation and Fraud Unit.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 45

statements to prosecutors for disclosure in turn to defendants (or, presumably, to courts). Read in
conjunction with GPO 19-73, then, Rule 66 can reasonably be interpreted as not applying to
exculpatory witness statements.

Rule 77 [No Title]
(1) Officers and members shall report on all matters referred to or investigated
by them. Such reports may be either verbal or written, as the officer in charge may
direct.
(2) They shall, before reporting off duty, make such written reports as may be
required on all matters coming to their attention or assigned to them for
investigation. If the investigation has not been completed before he reports [sic]
off duty, he shall make a report stating the progress made.
(3) He shall address his written reports to his superior officer and shall sign the
reports, giving his full name and rank, title or number. When required, such reports
shall be examined and signed by a superior officer. Written reports shall be
forwarded to the commanding officer.

Id. at PageID 1945–46.

Rule 77 required that officers make reports concerning their cases. It did not require that
such reports contain all exculpatory information that they may have learned. Importantly, it did
not require that any reports be disclosed to prosecutors, and it allowed reports to be made verbally
to a superior officer, a method well suited to the withholding of information from prosecutors.

Rule 78 [No Title]
Written and verbal reports, testimony in court and conversation of any kind
affecting the Division of Police, its officers, members, employees or persons under
its jurisdiction shall be truthful and unbiased.

Id. at PageID 1946.

Even read in conjunction with GPO 19-73 and the other rules discussed herein, the
limitations of Rule 78 render it incapable of carrying the weight with which Cleveland burdens it.
It required not that all reports be complete but only that they be truthful and unbiased. 23 Nor did

23Consider, for example, two officers who have coerced a witness into making what they believe to be a
truthful statement: a report detailing that statement but excluding the coercion would comport with Rule 78. More
insidiously, consider two officers who have coerced a witness into making a statement that they know to be false and
who file a report stating that the witness made that statement. That report would be both true and unbiased and
therefore consistent with Rule 78: the witness did, after all, make the (false) statement contained in the report.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 46

it require that any reports, which may have been made verbally to a superior officer, be disclosed
to prosecutors.

None of the rules contained within the Manual, taken individually or collectively, are
inconsistent with an interpretation of GPO 19-73 that permits officers to withhold exculpatory
information from prosecutors. These rules can be read by a reasonable jury as consistent with a
policy of permitting the withholding of exculpatory evidence in violation of Brady.

ii. Ohio Rule of Criminal Procedure 16

Cleveland also argues that the full text of Rule 16 made clear that defendants were entitled
to all exculpatory evidence, including witness statements. The version of Rule 16 in force in 1975
read in pertinent part as follows:

(B) Disclosure of evidence by the prosecuting attorney.
(1) Information subject to disclosure.
....
(f) Disclosure of evidence favorable to defendant.
[description of exculpatory evidence]
(g) In camera inspection of witness’ [sic] statement.
[description of procedure for in camera inspection of witness
statements]
(2) Information not subject to disclosure.
Except as provided in subsections (B)(1)(a), (b), (d), (f), and (g), this
rule does not authorize the discovery or inspection of reports,
memoranda, or other internal documents made by the prosecuting
attorney or his agents in connection with the investigation or
prosecution of the case, or of statements made by witnesses or
prospective witnesses to state agents.

Proposed Ohio Rules of Criminal Procedure, 46 Ohio BAR 817, 849–52 (1973) (emphases
added).

Unlike GPO 19-73 and the rules in the Manual, Rule 16 made it quite clear that defendants
were entitled to exculpatory witness reports. Rule 16(B)(2) excepted witness statements from the
general disclosure requirements, using language almost identical to that used in GPO 19-73.
Unlike GPO 19-73, however, Rule 16(B)(2) included an additional clause, excepting exculpatory
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 47

witness statements from the exception for witness statements generally. Rule 16(B)(2) thereby
placed exculpatory witness statements back into the universe of mandatory disclosure. As a result,
the full text of Rule 16 made it clear that prosecutors were obligated to disclose all exculpatory
witness statements to defendants.

This fact does not, however, save Cleveland, at least not at this stage of the litigation.
Cleveland has provided no evidence that Cleveland required that its officers follow the official
version of the Ohio Rules of Criminal Procedure, that those rules were followed by Cleveland
officers, or that Cleveland officers were even aware of those rules. There is evidence, of course,
that Cleveland officers were bound by Rule 16: GPO 19-73 can reasonably be interpreted as
directing that Cleveland officers follow the requirements of Rule 16. But GPO 19-73 could be
read as directing Cleveland officers to follow a modified version of Rule 16—the version included
in GPO 19-73.24

And that version differed in at least one material way from the official Rule 16. Both GPO
19-73 and the official Rule 16 included a paragraph excepting witness statements from the general
disclosure requirements. But although, as mentioned, that paragraph in the official Rule 16
contained an additional clause in paragraph (B)(2) excepting (by reference to the requirements of
(B)(1)(f) and (g)) exculpatory witness statements from that exception—and the paragraph in the
official Rule thereby required that exculpatory witness statements be disclosed—the version of
Rule 16 in GPO 19-73 omitted the clause in that paragraph excepting exculpatory witness
statements. The paragraph in the version of Rule 16 included in GPO 19-73 merely provided:

The foregoing [disclosure requirements] do[] not authorize the discovery or
inspection of reports, memoranda, or other internal documents made by the
Prosecuting Attorney or his agents (police departments are his agents) in connection
with the investigation or prosecution of the case, or of statements made by
witnesses or prospective witnesses to state agents.

24GPO 19-73 did not indicate that the version of Rule 16 it included was in any way different from the official
Rule 16 or suggest that officers either consult the official text of Rule 16 or consult prosecutors as to the duties of
officers or prosecutors under Rule 16.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 48

R. 101-7, PageID 1630. It was this modified version of Rule 16—the one that could plausibly be
interpreted as allowing the withholding of exculpatory witness statements—by which a reasonable
jury could find Cleveland officers were bound.

c. Conclusion

GPO 19-73 and the rules in Cleveland’s police manual, read together, could be understood
to authorize Cleveland officers to withhold exculpatory witness statements from prosecutors. It is
for a jury to consider GPO 19-73 and the rules in the Manual in light of Cleveland’s actual practices
and determine whether Cleveland had a policy of permitting Brady violations. Because Cleveland
does not contest that it promulgated GPO 19-73 or that the individual Defendants were acting in
conformance with GPO 19-73 when they withheld Vernon’s exculpatory statements, a reasonable
jury could find Cleveland liable under Monell. See Garner, 8 F.3d at 364–65.

Because a genuine issue of material fact exists as to whether Cleveland had a policy of
permitting Brady violations, the district court’s grant of summary judgment to Cleveland on
Plaintiffs’ first Monell theory was improper.

2. Failure to Train

Plaintiffs also argue that in 1975, Cleveland had “a policy of inadequate training or
supervision” of its officers as to their obligation to disclose exculpatory evidence under Brady.
Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013).

In order to show that a municipality is liable for a failure to train its employees, a plaintiff
“must establish that: 1) the City’s training program was inadequate for the tasks that officers must
perform; 2) the inadequacy was the result of the City’s deliberate indifference; and 3) the
inadequacy was closely related to or actually caused the injury.” Ciminillo v. Streicher, 434 F.3d
461, 469 (6th Cir. 2006) (citing Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992)).

Cleveland argues that Plaintiffs lack evidence sufficient for a jury to find that either of the
first two requirements is met. We address each requirement in turn.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 49

a. Adequacy of Cleveland’s Brady Training

When determining whether a municipality has adequately trained its employees,
“the focus must be on adequacy of the training program in relation to the tasks the particular
officers must perform.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).

Plaintiffs argue that Cleveland’s training program was deficient in that it failed to train
officers in their Brady obligations and that, to the degree that those officers received training in
the disclosure of evidence to prosecutors, they were trained to withhold exculpatory evidence.
Cleveland disagrees, citing deposition testimony to show that officers received official training in
their disclosure obligations as well as unofficial on-the-job training in their disclosure obligations.
The district court agreed with Cleveland.

It is undisputed that Cleveland officers received, and were trained in, the Manual. But as
discussed in section II(D)(1)(b)(i), supra, those rules could be read as insufficient to inform
officers of their disclosure obligations, as none of the rules in the Manual explicitly mandated
disclosure of exculpatory witness statements to prosecutors. The only rule from the Manual that
came close to requiring disclosure of witness statements to prosecutors was Rule 14, which applied
only to witness statements made to the Case Preparation and Fraud Unit, and it only required that
those statements be available to prosecutors, not that they be proactively disclosed.

Cleveland presents deposition testimony that “in the police academy . . . [y]ou were told to
give [exculpatory evidence] to . . . a prosecutor” and that “Cleveland police officers are trained
and instructed to turn over the entire product of their investigation to the prosecutor.” R. 103,
PageID 3664, 3672.

Cleveland also presents evidence that officers were trained on the job to disclose evidence.
One officer testified that although the rule was not always followed, “the rule was, you should turn
over all evidence acquired in an investigation to the prosecution.” R. 104, PageID 3949–50. That
officer also testified:

Police officers that conduct interviews are instructed to write down the statement
as close to what the witness said as possible, whether it is good or bad. But it is
part of what was said, and it needs to be, the entire thing needs to be presented to
the prosecutor, the entire thing, not parts of it, the entire thing.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 50

Id. at PageID 3972.

But Plaintiffs provide testimony that conflicts with Cleveland’s account of the training
received, both in the academy and on the job. One former officer testified that he was not “taught
anything at police academy about police officers’ obligation to disclose Brady evidence” and that
he did not remember having “ever attend[ed] any training concerning police officers’ obligation
to disclose exculpatory evidence to the defense.” R. 114-20, PageID 5127–29.

Another former officer testified that he could not recall having ever “attend[ed] any course,
or receive[d] any training in which [he] learned that officers have an obligation to disclose
exculpatory evidence to criminal defendants or prosecutors.” R. 114-35, PageID 5492–93.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 51

A third former officer testified, “As far as training, I would have to say no” training was
provided teaching officers they were required “to place any witness statements in the official file
or otherwise make them available to criminal defendants, defense counsels, and prosecutors.”
R. 102, PageID 1776. He also testified that there was “[n]o specific training” requiring police
detectives “to disclose exculpatory evidence.” Id. at PageID 1777.

The district court interpreted these statements as indicating only that no official training
had been provided, not that no on-the-job training had been provided. Jackson v. City of Cleveland,
CASE NO. 1:15CV989, 2017 WL 3336607, at *6 (N.D. Ohio Aug. 4, 2017). We think this a
cramped interpretation of these statements. One officer testified that he could not recall having
“receive[d] any training in which [he] learned that officers have an obligation to disclose
exculpatory evidence.” (emphasis added). Another testified that he received “no [training] to place
any witness statements in the official file.” (emphasis added). A reasonable jury could interpret
this testimony as indicating that officers received no training, on-the-job or otherwise, in their
Brady obligations generally or in their obligation to provide witness statements to prosecutors.

There is therefore a genuine issue of material fact as to whether Cleveland’s training of its
officers in their disclosure obligations was sufficient, and summary judgment was inappropriate
as to this issue. See Burgess, 735 F.3d at 471.

b. Cleveland’s Deliberate Indifference

“[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.” Bd. of Cty. Comm’rs v. Brown,
520 U.S. 397, 410 (1997) (internal quotation marks omitted). “In other words, the risk of a
constitutional violation arising as a result of the inadequacies in the municipal policy must be
‘plainly obvious.’” Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006) (quoting Bd.
of Cty. Comm’rs, 520 U.S. at 412).

A plaintiff may meet this standard by showing either (1) “prior instances of
unconstitutional conduct demonstrating that the City had notice that the training was deficient and
likely to cause injury but ignored it” or (2) “evidence of a single violation of federal rights,
accompanied by a showing that the City had failed to train its employees to handle recurring
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 52

situations presenting an obvious potential for such a violation.” Campbell v. City of Springboro,
700 F.3d 779, 794 (6th Cir. 2012) (citing Plinton v. Cty. of Summit, 540 F.3d 459, 464 (6th Cir.
2008)).

Plaintiffs do not contend that they can show Cleveland’s failure to train was deliberately
indifferent via the first method.25 Instead, Plaintiffs argue that they satisfy the second method of
showing deliberate indifference because the “likelihood that the situation [i.e., a situation requiring
police to handle exculpatory evidence] will recur and the predictability that an officer lacking
specific tools to handle that situation will violate citizens’ rights” mean that failing to train officers
in their disclosure obligations demonstrates deliberate indifference to the “highly predictable
consequence” that untrained officers will violate Brady. Jackson Br. at 65 (quoting Bd. of Cty.
Comm’rs, 520 U.S. at 409–10).

Plaintiffs cite Gregory in support of their conclusion. In Gregory, the plaintiff presented
evidence that the defendant municipality had failed to train its officers in the handling of
exculpatory evidence. See 444 F.3d at 753–54. This court reversed a grant of summary judgment
to the municipality, holding that a “custom of failing to train its officers on the handling of
exculpatory materials is sufficient to establish the requisite fault on the part of the [municipality]”
for a deliberate-indifference claim. Id. at 754 (citing Bd. of Cty. Comm’rs, 520 U.S. at 407).

Cleveland attempts to distinguish Gregory on the ground that in Gregory, the plaintiff had
presented evidence sufficient for a jury to find that the defendant municipality had failed to train
its officers, while in this case, Cleveland argues that the “undisputed evidence in the record
establishes that the detectives in the City’s Homicide Detective Bureau received on-the-job
training about the evidence that they were required to turn over to the prosecutor.” Cleveland Br.
at 48. But, as discussed above, the evidence is not undisputed. Plaintiffs have provided testimony
sufficient for a jury to find that Cleveland did not in fact train its officers in their disclosure

25Findingthat Plaintiffs had not shown Cleveland provided inadequate training to its officers, the district
court did not address whether Plaintiffs could make out the deliberate-indifference element by either method. See
Jackson, 2017 WL 3336607, at *5.
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 53

obligations. Gregory therefore controls, and there is sufficient evidence for a reasonable jury to
find that Cleveland was deliberately indifferent to the risk of Brady violations.

3. Conclusion

Plaintiffs having shown that there are genuine issues of material fact both as to whether
Cleveland had an official policy of permitting the withholding of exculpatory witness statements
from prosecutors and as to whether Cleveland had a policy of failing to train its officers in their
disclosure obligations, summary judgment was inappropriate on the Monell claims. See Burgess,
735 F.3d at 471.26 We therefore REVERSE the district court’s grant of summary judgment to
Cleveland as to those claims.

III. CONCLUSION

In 1940, then-Attorney General Robert H. Jackson admonished prosecutors: “Your
positions are of such independence and importance that while you are being diligent, strict, and
vigorous in law enforcement you can also afford to be just. Although the government technically
loses its case, it has really won if justice has been done.” 27 In the present case, by contrast, one
law-enforcement officer testified that “winning the case was what it was all about. It wasn’t about
what was fair, it wasn’t about what was honest, it was about winning.” R. 104, PageID 3967–68.
If that sentiment explains the circumstances of Plaintiffs’ convictions, then those convictions were
the result of a process that was the very antithesis of Jackson’s famous admonition.

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to
Stoiker as to Plaintiffs’ § 1983 claims for conspiracy to fabricate evidence and withhold
exculpatory evidence. We REVERSE and REMAND the district court’s (1) judgment on the
pleadings for Cleveland as to Plaintiffs’ indemnification claims; (2) denial of Plaintiffs’ motions
to amend their complaints to substitute the administrator of the estates of the deceased Defendants
as a party in their place; (3) grant of summary judgment to Stoiker as to the § 1983 claims for

26A failure-to-train claim under Monell also requires showing that the failure to train “was closely related to
or actually caused [Plaintiffs’] injury,” Ciminillo, 434 F.3d at 469, but Cleveland does not dispute that element.
27Robert H. Jackson, Attorney Gen. of the U.S., Address at the Second Annual Conference of United States
Attorneys: The Federal Prosecutor (Apr. 1, 1940).
 Nos. 17-3840/3843 Jackson, et al. v. City of Cleveland, et al. Page 54

withholding of exculpatory evidence in violation of Brady, fabrication of evidence, and malicious
prosecution; and (4) grant of summary judgment to Cleveland as to the Monell claims.