Lisa Price v. Montgomery County

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0145p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
LISA PRICE, Personal Representative of the Estate of
│
Nickie Miller,
│
Plaintiff - Appellant, │
│
> No. 21-6076
v. │
│
MONTGOMERY COUNTY, KENTUCKY, et al., │
Defendants-Appellees. │
│
┘
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:18-cv-00619—Danny C. Reeves, Chief District Judge.

Argued: October 27, 2022

Decided and Filed: July 5, 2023

Before: SILER, NALBANDIAN, and READLER, Circuit Judges.
_________________

COUNSEL

ARGUED: Debra Loevy, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Lynn Sowards
Zellen, KINKEAD & STILZ, PLLC, Lexington, Kentucky, for Appellees Montgomery County,
Fred Shortridge, Ralph Charles, Jr., Mark Collier, and Eric Jones. Michael R. Wajda, OFFICE
OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee Keith
Craycraft. Brenn O. Combs, KENTUCKY STATE POLICE, Frankfort, Kentucky, for Appellee
John Fyffe. ON BRIEF: Debra Loevy, Elliot Slosar, Amy Robinson Staples, Margaret E.
Campbell, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Lynn Sowards Zellen, D. Barry
Stilz, KINKEAD & STILZ, PLLC, Lexington, Kentucky, for Appellees Montgomery County,
Fred Shortridge, Ralph Charles, Jr., Mark Collier, and Eric Jones. Michael R. Wajda, Matthew
F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for
Appellee Keith Craycraft. Brenn O. Combs, KENTUCKY STATE POLICE, Frankfort,
Kentucky, for Appellee John Fyffe.

READLER, J., delivered the opinion of the court in which SILER, J., joined.
NALBANDIAN, J. (pp. 18–30), delivered a separate opinion concurring in part and in the
judgment.
 No. 21-6076 Price v. Montgomery County Page 2

_________________

OPINION
_________________

CHAD A. READLER, Circuit Judge. Paul Brewer was found blindfolded and tied to his
bed with two bullet holes in him. Brewer’s death went unexplained for years, until Natasha
Martin confessed to being part of a scheme to rob Brewer in his home. According to Martin,
Nickie Miller and others killed Brewer after Martin left the scene. But Martin would later recant
and re-confess, and would do so more than once. Despite the back and forth, Miller was arrested
and charged with murder based primarily on Martin’s confession.

Miller believed that Martin’s shifting story was the product of official misconduct. So he
brought this action under 42 U.S.C. § 1983 against the prosecutor, polygrapher, and investigating
officers, as well as Montgomery County. While couched under the umbrella of numerous causes
of action, the crux of Miller’s argument is that he was illegally detained without nonfabricated
probable cause. The district court granted a mix of absolute and qualified immunity to
defendants. We agree and affirm.

I.
The facts tell a tale worthy of the silver screen. Upon arriving at Paul Brewer’s home to
conduct a welfare check, Montgomery County officers discovered Brewer was deceased.
Detective Sergeant Ralph Charles was called to the scene. When he arrived, he found Brewer’s
naked body tied to his bed frame and sprawled out in a pool of blood. A twice-punctured pillow
was laid atop Brewer’s head. Men’s underwear and black fishnet stockings lay on the floor
beside him. After removing the pillow, Charles discovered that Brewer was blindfolded, and
that he had been shot twice by a .45 caliber revolver.

Charles began investigating Brewer’s death. He first contacted Brewer’s daughter. She
told Charles that Brewer was having a threesome that night and that she believed Brewer’s
girlfriend was responsible for the murder. But other people Charles contacted believed the
culprit was someone else, offering their own theories of the crime. In the end, the investigation
made little progress.
 No. 21-6076 Price v. Montgomery County Page 3

The case went cold for nearly four years. Then, Kennie Helton, an inmate in a local
prison, reached out to Charles, indicating she had information about Brewer’s murder. Charles
had spoken to Helton during his initial investigation. The story she told Charles this time was
markedly different than the one she told years earlier. Now, she claimed that three men—
including Nickie Miller and Cody Hall—and two women were responsible for Brewer’s death.
According to Helton, the men had the two women set up a threesome with Brewer in an effort to
rob him. The DNA found at the scene, however, did not implicate either of the women Helton
identified.

Nonetheless, Charles interviewed the two women. The story they told Charles implicated
Natasha Martin in the purported ménage à trois. Charles knew the story he had just heard was
false. Yet he, along with Montgomery County Sheriff Fred Shortridge and Deputy Mark Collier,
acted on the lead anyway and interviewed Martin in late 2015. Contrary to Sheriff’s Office
policy, the interview was not recorded. During the interview, Martin waffled between denying
any involvement in the murder and equivocating on the issue. She first provided an impossible
alibi. Later, officers told her that her DNA was found at the crime scene; in truth, the DNA
testing results were inconclusive and merely failed to exclude Martin. Next, they confronted
Martin with information from other witnesses. Martin eventually backtracked, saying that, if she
had been with Hall and Miller that night and “something happened,” she “really didn’t know it
was going to happen.”

After the interview, Charles brought Martin to take a polygraph examination with John
Fyffe of the Kentucky State Police. Charles and Collier gave Fyffe some general background
information as well as their theory of the case, including potential suspects. Fyffe began his pre-
examination interview by asking Martin some personal questions. In so doing, he told Martin
(without knowing if the information was public) some of the facts relayed to him by Charles and
Collier. Namely, Fyffe noted that the murder occurred on Natalie Drive in Mount Sterling,
Kentucky, detectives believed two women tied Brewer to his bed before Hall and another man
killed him, and Martin’s DNA was found on one of the wrist restraints used to tie down Brewer.
He then conducted the examination. When he finished, he told Martin and Charles the results:
Martin failed. Yet Martin continued to deny involvement.
 No. 21-6076 Price v. Montgomery County Page 4

Fyffe changed his approach. He turned to seeking Martin’s cooperation by minimizing
her role, telling her that this was a “robbery gone bad” and that they only wanted the trigger man,
not her. More to the point, Fyffe went beyond implication in telling Martin that “she’[d] walk” if
she told the officers who killed Brewer, despite lacking the authority to make such a decision and
not knowing if it was true. And the flip side: if she did not implicate anybody else, Fyffe told
her, she would “go down by herself.” Martin asked to speak with Charles. He told Martin that
she needed to clear her conscience and think of her children, who Fyffe implied could be taken
away if she remained a suspect rather than a witness. At this point, Martin asked for a lawyer,
but she continued to answer questions without one.

Charles and Collier eventually took Martin back to Shortridge’s office, where they again
interrogated her until she once more asked for a lawyer. Shortridge contacted attorney James
Davis. After speaking privately with Martin for 20 minutes, Davis promptly called the
Commonwealth Attorney to work out a deal. They agreed that Martin would get a diversionary
deal in exchange for her truthful statement, meaning she would plead guilty, serve no jail time,
and no longer be a felon in five years’ time.

With the deal struck and her attorney present, Martin continued the interview with
Charles, Collier, and Shortridge. Martin explained that her memory was not “100 percent”
because she was “very, very high” the night Brewer was killed. R.118-33, PageID# 3018, 3020–
21. She was unsure if the other woman there that night was Kennie Helton or Kyla Walters. She
did, however, recall tying Brewer to his bed with Velcro straps. She said that she and the other
woman radioed to Miller after Brewer was tied down. She heard one gunshot after leaving the
house (two bullets were recovered). And, she added, Hall later told her that Miller killed
Brewer, and that she was to tell nobody about the robbery.

Martin went home to her grandmother. At this point she broke into tears, knowing the in-
station confession was false. The next morning, Martin went to recant her confession. But the
officers did not believe her—despite knowing that some of the information she originally
provided was incorrect. Martin stepped out to speak with her attorney. When she re-emerged,
she took the position that her original confession was accurate. Armed with Martin’s confession,
 No. 21-6076 Price v. Montgomery County Page 5

Charles testified before a grand jury and secured indictments against Hall, Miller, and Martin for
Brewer’s robbery and murder.

Martin would recant her confession yet again. In jailhouse letters, Martin told Hall that
her confession was obtained through “coercive interrogation techniques, threats, and undisclosed
promises of consideration.” Complaint, R.1, PageID# 24, ¶ 156. Hall responded, indicating that
they were both innocent of Brewer’s murder. Miller’s defense team sought and obtained a state
court order directing jail personnel to grant them access to these letters. But when they tried to
contact Martin, they were told she had been released on bond and was no longer in their custody.
Jail personnel contacted Martin, who in turn contacted the prosecutor assigned to take lead on the
case, Assistant Commonwealth Attorney Keith Craycraft, to ask about the order. Craycraft told
Martin to get rid of the letters rather than turn them over, so she did.

Kentucky eventually dropped its charges against Miller. But that would not be the end of
things. Miller filed this § 1983 action for malicious prosecution, fabrication of evidence,
destruction of exculpatory evidence, due process violations, conspiracy, and related Kentucky
law claims. Named as defendants were Charles, Collier, Craycraft, Fyffe, jailer Eric Jones,
Shortridge, and Montgomery County. The district court dismissed Miller’s claims against
Craycraft on account of his absolute immunity as a prosecutor. The remaining defendants were
later awarded summary judgment on the § 1983 claims on the basis of qualified immunity. The
state claims, the district court explained, likewise failed because Miller did not raise a genuine
issue of material fact, and his claims failed as a matter of law.

Miller timely appealed. But he passed away soon thereafter. His daughter, representing
his estate, was substituted for him as plaintiff, and the case has proceeded accordingly. For
convenience, we will continue to refer to the plaintiff as Miller.

II.
Miller’s appeal raises one jurisdictional issue. By way of background, the district court
had subject matter jurisdiction over this case at the time Miller filed his complaint. Jurisdiction
over Miller’s constitutional claims was authorized by 28 U.S.C. § 1331, as those claims arose
under federal law. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
 No. 21-6076 Price v. Montgomery County Page 6

312 (2005). And the court had supplemental jurisdiction over Miller’s Kentucky law claims
under 28 U.S.C. § 1367, as those claims share a “common nucleus of operative fact” with
Miller’s constitutional claims. City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 165
(1997) (citation omitted).

Miller also properly invoked our jurisdiction, as he appealed from the entry of final
judgment in defendants’ favor. See 28 U.S.C. § 1291. But while his appeal was pending, Miller
passed away, at which point his estate was substituted for him as plaintiff. Defendants filed a
joint motion to dismiss for lack of jurisdiction. They maintained that Kentucky’s survivorship
statute, Ky. Rev. Stat. § 411.140, precludes malicious prosecution and related claims following
Miller’s death. Defendants’ argument, however, confuses traditional state law malicious
prosecution claims with Fourth Amendment-inspired claims, also referred to as “malicious
prosecution.” See Sykes v. Anderson, 625 F.3d 294, 308–10 (6th Cir. 2010) (“[D]esignating the
constitutional claim as one for ‘malicious prosecution’ is both unfortunate and confusing. A
better name that would perhaps grasp the essence of this cause of action under applicable Fourth
Amendment principles might be ‘unreasonable prosecutorial seizure.’” (quoting Frantz v. Village
of Bradford, 245 F.3d 869, 881 (6th Cir. 2001) (Gilman, J., dissenting), abrogated on other
grounds by Darrah v. City of Oak Park, 255 F.3d 301, 311–12 (6th Cir. 2001)); see also
Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022) (recognizing a Fourth Amendment malicious
prosecution claim may be brought for “unreasonable seizure pursuant to legal process”). These
latter claims are in effect false arrest claims, arising out of the Fourth Amendment’s prohibition
on unreasonable seizures. Sykes, 625 F.3d at 308–10. And for determining survival of § 1983
claims, we do not break them out individually. Jackson v. City of Cleveland, 925 F.3d 793, 811
(6th Cir. 2019). The level of generality at which we view those claims is that of basic personal
injury actions, which, under Kentucky law, do not abate. Ky. Rev. Stat. § 411.140. In that way,
malicious prosecution claims under § 1983 are not the types of malicious prosecution tort claims
that might abate under Kentucky law. Defendants’ motion to dismiss for lack of jurisdiction is
accordingly denied.
 No. 21-6076 Price v. Montgomery County Page 7

III.
A. Turning to the merits, we begin with Miller’s contention that the district court erred in
holding that prosecutor Craycraft was entitled to absolute prosecutorial immunity. On that basis,
the district court dismissed the claims against Craycraft in accordance with Federal Rule of Civil
Procedure 12(b)(6). We review the district court’s determination de novo, accepting the
complaint’s allegations as true and drawing all reasonable inferences in Miller’s favor. Leech v.
DeWeese, 689 F.3d 538, 541–42 (6th Cir. 2012). Because Craycraft is the party claiming
immunity, he has the burden of establishing that his challenged behavior was prosecutorial in
nature. Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993).

“American law has long recognized ‘absolute immunity’ for those ‘whose special
functions or constitutional status requires complete protection from suit.’” Barnett v. Smithwick,
835 F. App’x 31, 35–36 (6th Cir. 2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982)). “That brand of immunity extends to government officers like prosecutors whose
activities are ‘intimately associated’ with the judicial process.” Id. (quoting Imbler v. Pachtman,
424 U.S. 409, 430 (1976)). Prosecutors, alongside defense counsel, are tasked with equipping
judges and juries to accurately determine a defendant’s guilt. That task necessarily entails
making judgment calls as to how pre-trial matters are handled, trials are conducted, witnesses are
used, and evidence is presented. Imbler, 424 U.S. at 426. Conduct of that ilk traditionally is
accompanied by absolute immunity from civil liability. Id. at 426–27. In fact, prosecutorial
immunity has a long reach—it extends even to “unquestionably illegal or improper conduct,”
including instances where a defendant is genuinely wronged. Cady v. Arenac County, 574 F.3d
334, 340 (6th Cir. 2009). Why? To serve “the broader public interest” in preventing retaliatory
lawsuits against prosecutors from gumming up the wheels of justice. Imbler, 424 U.S. at 427.
That said, immunity from suit does not immunize badly behaving prosecutors from other forms
of accountability—they can be subjected to court sanctions, removal from office, and criminal
charges, among other ramifications. Id. at 428–29.

Prosecutorial immunity’s reach, however, has its limits. Buckley, 509 U.S. at 273.
Conduct that falls outside the cloak of absolute immunity includes instances where the
prosecutor’s actions are not intimately associated with the judicial process. Id. That could
 No. 21-6076 Price v. Montgomery County Page 8

include, for example, investigative efforts to obtain an arrest warrant, authorize wiretaps, or
advise the police. Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003) (discussing Kalina
v. Fletcher, 522 U.S. 118, 130–31 (1997); Burns v. Reed, 500 U.S. 478, 496 (1991); Mitchell v.
Forsyth, 472 U.S. 511, 520 (1985); and Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000)
(en banc)). It could also include other acts committed before or after the criminal proceeding.
Id. at 798–99. In those and similar settings, prosecutors receive only qualified immunity.
Buckley, 509 U.S. at 269.

Which camp, then, does Craycraft’s conduct best represent? Recall that Miller’s claim
against Craycraft is centered on his successful pressuring of Martin to destroy her jailhouse
correspondence with Hall. The behavior Miller describes in his complaint is difficult to justify
and seemingly unbecoming of an official entrusted with enforcing the criminal law. At the same
time, Craycraft has met his burden of establishing that the conduct at issue was committed in his
role as prosecutor, rendering him immune from suit.

1. Because the conduct at issue was in furtherance of genuine prosecutorial interests,
Craycraft has absolute immunity for his actions. Rouse v. Stacy, 478 F. App’x 945, 954 (6th Cir.
2012). Start with Craycraft advising Martin to destroy evidence, advice she acted upon.
“Preparation of witnesses for trial is protected by absolute immunity.” Spurlock, 330 F.3d at 797
(citing Higgason v. Stephens, 288 F.3d 868, 878 (6th Cir. 2002)). Martin was the key witness in
Miller’s ongoing prosecution. Communication with Martin itself was thus plainly within the
prosecutorial role. True, as Miller notes, prosecutors do not receive absolute immunity when
giving legal advice to police investigators, as in that capacity they act as investigators rather than
prosecutors. Watkins v. Healy, 986 F.3d 648, 661 (6th Cir. 2021). But here, Craycraft was
addressing matters related to Miller’s prosecution with Martin, not telling police whether he
believed their investigative techniques were satisfactory. Compare Spurlock, 330 F.3d at 798
(absolute immunity for directing witnesses to falsify testimony at trial), with Burns, 500 U.S. at
482 (no absolute immunity for advising police officers that evidence gathered from hypnosis
“probably” supported a decision to arrest).

That Craycraft’s advice prompted Martin to destroy exculpatory evidence does not
change our conclusion. As a starting point, consider that prosecutors maintain their immunity
 No. 21-6076 Price v. Montgomery County Page 9

when intentionally failing to disclose exculpatory evidence. Koubriti v. Convertino, 593 F.3d
459, 467 (6th Cir. 2010). Allowing such cases to proceed, the Supreme Court has explained,
“would ‘weaken the adversary system at the same time it interfered seriously with the legitimate
exercise of prosecutorial discretion.’” Id. (quoting Imbler, 424 U.S. at 431 n.34). And
withholding and destroying evidence “often will be two sides of the same coin.” Annappareddy
v. Pascale, 996 F.3d 120, 142 (4th Cir. 2021) (citing Imbler, 424 U.S. at 431 n.34); see also
Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 679 (9th Cir. 1984) (prosecutors
absolutely immune from suits for failing to preserve evidence). In the end, “what matters is the
decision to withhold exculpatory evidence from a defendant and the judicial process,” either by
failing to disclose the evidence or failing to preserve it. Annappareddy, 996 F.3d at 142. In both
instances, the “decision is made in an ‘advocative’ capacity.” Id. Craycraft’s role in the
destruction of evidence thus did not exceed the scope of his immunity as a prosecutor. See
Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) (prosecutors entitled to absolute
immunity for destruction of evidence).

Resisting this conclusion, Miller points us to the Third Circuit’s decision in Yarris v.
County of Delaware, 465 F.3d 129 (3d Cir. 2006). There, prosecutors “deliberately destroyed
. . . highly exculpatory information” that led to an innocent man being convicted. Id. at 132–33
& 136–37. “[D]estroying exculpatory evidence,” the Third Circuit held, “is not related to a
prosecutor’s prosecutorial function.” Id. at 136. In reaching that conclusion, our sister circuit
distinguished the admittedly “well settled [precedent] that prosecutors are entitled to absolute
immunity from claims based on their failure to disclose exculpatory evidence.” Id. at 137.
“[W]hile deciding not to furnish the prosecution’s evidence to the defense may be an act of
advocacy, throwing the evidence away is not such an act.” Id. (quoting Wilkinson v. Ellis, 484 F.
Supp. 1072, 1083 (E.D. Pa. 1980)). This dichotomy, however, pays little heed to the
understanding that decisions regarding “the sufficiency of available evidence” or what to do with
that evidence “cannot be characterized as merely administrative or . . . merely investigative.”
Ybarra, 723 F.2d at 679. That calculus, rather, “goes to the heart of the advocate’s role ‘in
initiating a prosecution and in presenting the State’s case.’” Id. (internal citation omitted).
Holding otherwise seemingly would make actionable every good-faith decision by a prosecutor
that evidence is immaterial and disposable, transforming criminal defendants into civil plaintiffs
 No. 21-6076 Price v. Montgomery County Page 10

whenever evidence is destroyed. See Imbler, 424 U.S. at 431 n.34. We need not tie the hands of
prosecutors by requiring them to maintain and preserve everything collected as evidence,
regardless of relevance to a criminal case and regardless of the burden such maintenance and
preservation imposes.

2. We reach the same conclusion with respect to Craycraft’s purported thwarting of a
court order. Look back to Miller’s complaint to frame the issue. There, Miller alleged that
Craycraft “facilitate[ed] the destruction of exculpatory evidence” by advising a witness to
frustrate a valid court order. That allegation is troubling, as the purported conduct is not
something we condone or encourage. Nevertheless, it is not conduct so outside the prosecutorial
role that it loses its cloak of absolute immunity. By definition, matters related to a court order in
a criminal case are naturally part of the prosecutorial process. The order was set to govern
procedures related to the prosecution. It was sought by Miller for purposes of defending himself
in the prosecution. And the destroyed evidence was believed to be highly relevant to the defense
Miller would present at trial.

In similar circumstances, the Eighth Circuit affirmed an award of absolute immunity to a
prosecutor who held a detainee without probable cause in violation of an order to either file an
information or release him. Webster v. Gibson, 913 F.2d 510, 513–14 (8th Cir. 1990). Immunity
was appropriate, the appeals court explained, because “disregard[ing] a court order to file an
information would not place him outside the scope of his prosecutorial duties.” Id. (footnote
omitted). In many respects, Webster sweeps more broadly than our holding today: it established
a rule that prosecutors maintain absolute immunity in directly violating court orders presented to
and directed at them. As Craycraft did not violate a court order directed to him, we leave a
question of that manner for resolution in a future case. See, e.g., Odd v. Malone, 538 F.3d 202,
214 (3d Cir. 2008) (“We can imagine few circumstances under which we would consider the act
of disobeying a court order or directive to be advocative, and we are loath to grant a prosecutor
absolute immunity for such disobedience.”).

Here, Craycraft’s actions are better described as advising a witness to act in unethical
ways regarding evidence relevant to an ongoing prosecution. This is related enough to the
prosecutorial function to accord Craycraft absolute immunity. We note that our concurring
 No. 21-6076 Price v. Montgomery County Page 11

colleague describes Craycraft as “receiv[ing] and violat[ing]” an order “that eliminated nearly all
his discretion.” Concurrence at 26 & 28 n.10. Miller’s complaint, however, tells a somewhat
different story. According to Miller, he secured an order requiring “any and all personnel of the
Montgomery County Detention Center,” “upon presentation of th[e] order,” to “immediately go
to Natasha Martin and retrieve from her all correspondence, letters and emails written to her [or]
by her to Co-defendant Cody Hall,” and to then produce those documents to Miller. Miller
presented the order to a jail employee. The employee called Martin to inform her of the court’s
order. Martin then called Craycraft, who, according to the complaint, was aware of the order.
Craycraft then “participated in the tampering and destruction of exculpatory physical evidence
by encouraging” Martin to destroy those items. Only later, in responsive briefing, did Miller
claim that Craycraft himself “violated” the order. That appears to be an implausible reframing of
the complaint’s allegations that Craycraft was never presented with or made subject to the order.

Miller cites a handful of cases he says warrant a different outcome. But in none of them
was there an active prosecution at the time of the prosecutor’s misdeed. The Third Circuit, for
instance, concluded that holding a witness “in state custody after the termination of the
proceeding in which he was to testify” was extraprosecutorial because there was no longer a
prosecution to conduct when the prosecutor decided to hold the witness. Odd, 538 F.3d at 215
(emphasis added). The Fifth Circuit denied absolute immunity to a Mississippi district attorney
who allowed a girl’s father to see her after promising a California court that he would enforce its
protective order; the district attorney was not prosecuting a case involving either the father or his
daughter. Chrissy F. ex rel. Medley v. Miss. Dep’t of Pub. Welfare, 925 F.2d 844, 847, 850–51
(5th Cir. 1991). And the Tenth Circuit found it “difficult to see how a prosecutor’s actions in
contravening the authority of the judicial branch of state government in regard to the defense of
a civil action constitute the kind of advocacy related to the initiation and prosecution of criminal
proceedings, even under the most generous interpretation of that phrase.” Gagan v. Norton, 35
F.3d 1473, 1476 (10th Cir. 1994) (emphasis added).

In sum, we agree with the district court that Craycraft was absolutely immune from suit.

B. As to the remaining defendants, the district court granted them summary judgment on
the basis of qualified immunity. Our standard of review on appeal is de novo. Barton v. Martin,
 No. 21-6076 Price v. Montgomery County Page 12

949 F.3d 938, 946 (6th Cir. 2020). Drawing all reasonable inferences in the light most favorable
to the non-moving party, we ask whether a reasonable jury could return a verdict for Miller as to
his claims for violations of the Fourth Amendment, which encompass fabrication of evidence,
malicious prosecution, and related § 1983 claims. Id.

Qualified immunity is a different brand of immunity than absolute prosecutorial
immunity. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity protects
government officials who make mistakes while reasonably performing their duties, but allows
for accountability when those officials “exercise power irresponsibly.” Id. The legal test for
determining whether qualified immunity applies is familiar. Officials are immune from suit
when “their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). That formulation requires us to answer two questions in the affirmative before
letting a suit against a government official proceed to discovery—did the official violate a
plaintiff’s constitutional right, and was that right clearly established at the time? Id. at 232. If
the plaintiff fails either one of these questions, we need not consider the other. Id. at 236.

1. Miller first claims that defendants committed a Fourth Amendment violation by
fabricating Martin’s testimony implicating Miller. Fabrication of evidence claims require two
showings: one, that evidence was knowingly fabricated; and two, that it is reasonably likely that
the fabricated evidence affected the jury’s decision. Jackson, 925 F.3d at 815 (citation omitted).
As to the latter element, the relevant jury “decision” includes when fabricated evidence prompts
the state to empanel a grand jury. Id. at 816–17. As Martin’s testimony doubtlessly affected the
decision to empanel a grand jury, Miller only needs to show that the evidence was fabricated.

Turning, then, to fabrication, Miller takes issue with defendants failing to record large
segments of the interrogation, misleading Martin about her DNA being a match and other people
implicating her, telling Martin information that she would need to sound plausible in her
confession, threatening her and her children, promising her that she would go free if she
cooperated, and telling her that she failed the polygraph test. Miller argues that, had a prosecutor
known all the problems with the defendants’ case against Miller, Kentucky would not have
brought charges against him.
 No. 21-6076 Price v. Montgomery County Page 13

We are not persuaded that the evidence was plausibly fabricated. From a review of the
record, it is difficult to agree with Miller’s description of Martin’s statement as entirely
comprised of either facts fed to her or objectively wrong statements. For example, Martin
confirmed, without prompting, the suspected use of radios by the perpetrators, the design of the
stockings found at the scene, and which doors the perpetrators entered and exited through.
Martin was also able to explain—apparently without knowledge that another witness had said the
gun was thrown into a pond—why the divers were unable to find the gun in the pond. Miller is
right that certain things were fed to Martin, either wittingly or unwittingly, that may have
allowed her to believably make up a confession. But there is nothing to indicate that Charles,
Fyffe, Shortridge, or anyone else knew that she had blatantly lied (if she in fact did) when the
decision to empanel a grand jury was made.

Miller further speculates that defendants intentionally failed to record part of the
interrogation to allow them to offer “more explicit promises” and conduct “witness coaching.”
While it is possible that the unrecorded parts of the interrogation involved witness coaching, that
is always the case with anything conducted off the record. It seems equally likely that any one of
an infinite number of explanations for the failure to record the interrogation could apply, such as
it being genuinely accidental, for example. Without more, any such conclusion is beyond what a
jury’s reasonable inferences would allow.

Miller next points to the coercive tactics that defendants used to try to get Martin to
fabricate her statement. Undoubtedly, defendants were trying to pressure Martin to speak out.
Yet even then, there is not enough evidence to say that Martin’s confession was coerced, never
mind fabricated. See Stroble v. California, 343 U.S. 181, 191 (1952) (“His willingness to
confess . . . after he had been arraigned and counsel had been appointed, and in circumstances
free of coercion, suggests strongly that” the confession was not “the result of coercion, either
physical or psychological.”). Miller suggests that Martin “cav[ed] to” defendants’ threats when
she offered to “make something up” if that is what they wanted. Opening Br. at 36 (quoting
R.118-30, PageID# 2957). Fyffe, however, told Martin otherwise: “You start talking, and you
tell me the truth. That’s what—that’s all he wants is the truth. You know about the
truth.” R.118-30, PageID# 2957. It is exceedingly difficult to read that statement as “knowingly
 No. 21-6076 Price v. Montgomery County Page 14

fabricating” Martin’s testimony, even if Fyffe knew he was exerting pressure on her. All told,
Miller’s fabrication of evidence claim cannot survive summary judgment.

2. In the district court, Miller also claimed that defendants Charles, Collier, Fyffe, Jones,
and Shortridge prosecuted him without probable cause in violation of his Fourth Amendment
right to be free from unreasonable seizure. On appeal, he renews those claims of malicious
prosecution as to Charles, Fyffe, and Shortridge. To prove a § 1983-based malicious prosecution
claim, Miller must establish four elements for each defendant: (1) the defendant made,
influenced, or participated in the decision to initiate a prosecution against him; (2) there was not
probable cause for the prosecution; (3) the legal proceeding caused a deprivation of liberty
beyond the initial seizure; and (4) the criminal proceeding against him was resolved in his favor.
Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015).

Beginning with the sheriff, Shortridge prevails on the first element, as he neither
influenced nor participated in the decision to prosecute Martin. The governing standard sets a
high bar for Miller to clear. “Providing reports, affidavits, or other investigative materials
containing falsehoods, omissions, or misstatements to a prosecutor can constitute participation
when (1) those materials formed the basis for the charge,” and (2) “were made deliberately or
with reckless disregard for the truth.” Tlapanco v. Elges, 969 F.3d 638, 655 (6th Cir. 2020)
(citation omitted). The second element has a gatekeeping effect, as “[a]llegations of negligence
or innocent mistake are insufficient.” Moseley, 790 F.3d at 655 (citing Robertson v. Lucas, 753
F.3d 606, 617 n.7 (6th Cir. 2014)). As to Shortridge, however, Miller points to no reports,
affidavits, or investigative materials prepared by Shortridge that would have influenced the
decision to prosecute Miller. Perhaps, as Miller claims, Shortridge was aware of arguably
exculpatory information that he failed to ensure was known by the prosecution. Yet Miller does
not claim that Shortridge told prosecutors any of the supposed lies or anything else.

Now consider Fyffe, the polygrapher. Miller claims that Fyffe engaged in
misinformation with the pre-polygraph reports. For support, Miller points to the pre-polygraph
report’s inclusion of Martin’s supposed statements relating to her presence at the crime scene.
By all accounts, however, Fyffe’s understanding of the investigation came from Charles, who
relayed to Fyffe information he was told by a witness. According to the witness, Martin said that
 No. 21-6076 Price v. Montgomery County Page 15

she was present at the crime scene when Brewer was shot. No reasonable jury could conclude
that Fyffe deliberately or recklessly attempted to mislead anybody in simply reporting what he
was told by Charles.

Miller makes the same general allegation with respect to the information in the post-
polygraph report. Specifically, Miller asserts that Fyffe lied about Martin failing the
examination. But Miller rests this argument entirely on his expert’s testimony that polygraphs
are unscientific. That general observation does not cast doubt on the genuineness of Fyffe’s
belief that Martin failed her exam.

That leaves Charles, the detective. Charles’s report was arguably misleading with respect
to Martin’s identification of the other woman and her familiarity with the location of the crime
scene. But even if Miller satisfies the first element, he fails to meet his burden on the second, as
there was probable cause to arrest Miller. See Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007)
(explaining that malicious prosecution claims fail “when there was probable cause to
prosecute”), abrogated on other grounds by Pearson, 555 U.S. at 227. Begin with the
recognition that Miller was indicted by a grand jury, a fact that generally serves as rebuttable
“proof of probable cause.” King v. Harwood, 852 F.3d 568, 587 (6th Cir. 2017). To rebut that
presumption, Miller has to show: (1) Charles knowingly or recklessly made false statements,
falsified evidence, or fabricated evidence to set a prosecution in motion; (2) the statements and
evidence, along with concealments and misleading omissions, were material to the prosecution;
and (3) the statements and evidence were not merely grand jury testimony or, in the broad sense,
part of the preparation for such testimony. Id. at 587–88. The district court concluded that
Miller did not rebut the presumption.

We agree. To begin, none of Charles’s conceivable omissions or misstatements were
false, nor did Charles falsify or fabricate evidence. Look back to the omissions and
misstatements that Charles plausibly made: he reported Martin’s statement that either “Keenie
Helton or Kyla Walters” was the other woman; and he reported that Martin said she got out of
the car in front of Brewer’s house and that the car then parked “on an undeveloped street behind
the property.” Even if these statements are misleading, they are not false. That being the case,
 No. 21-6076 Price v. Montgomery County Page 16

Miller has not shown that Charles knowingly or recklessly made false statements, falsified
evidence, or fabricated evidence to set a prosecution in motion.

Nor was Charles’s report material to the prosecution. Martin was a co-defendant and
accomplice who, in the presence of counsel, admitted that she, along with Miller, participated in
the robbery gone wrong. While some of her statements were contradicted by the record, other
parts corroborated what the investigators knew and did not share with her or the public. And her
explanation for misremembering was plausible—she was “very, very high” when the murder
occurred. Prosecutors were aware of all of this when they decided to prosecute Miller. From
this record, there was more than enough to support probable cause to do so. See United States v.
Hayes, 49 F.3d 178, 181 (6th Cir. 1995) (“[T]he uncorroborated testimony of an accomplice may
be enough to support a conviction, thus by implication, the corroborated testimony of an
accomplice or co-defendant will also suffice.” (internal citation omitted)). As to Charles too,
then, Miller’s malicious prosecution claim fails because a reasonable jury could not conclude
there was no probable cause for his prosecution.

3. The district court also granted summary judgment to defendants on Miller’s failure to
supervise, failure to intervene, civil conspiracy, and municipal liability claims. The flaw in
Miller’s theory, the district court explained, was that he did not show an underlying
constitutional violation that would have permitted recovery on these bases. To revive those
arguments, Miller needed to revive either his malicious prosecution or his evidence fabrication
claim. See Griffith v. Franklin County, 975 F.3d 554, 579 (6th Cir. 2020) (“[A] plaintiff cannot
establish a claim for supervisory liability without establishing an underlying constitutional
violation by a supervised employee.”); Bonner-Turner v. City of Ecorse, 627 F. App’x 400, 413
(6th Cir. 2015) (“[B]ecause there is no underlying constitutional violation, [the officer] may not
be liable for failure to intervene.”); Stricker v. Township of Cambridge, 710 F.3d 350, 365 (6th
Cir. 2013) (Conspiracy claim needs an underlying constitutional violation); Robertson, 753 F.3d
at 622 (“There can be no liability under Monell without an underlying constitutional violation.”).
In light of the above, the district court did not err by dismissing these claims.

C. In addition to the claims under § 1983, Miller also brought Kentucky law claims for
malicious prosecution against the individual defendants and for negligent supervision against
 No. 21-6076 Price v. Montgomery County Page 17

Montgomery County. The district court granted summary judgment to defendants on both sets
of claims. Miller’s claim against Montgomery County has been abandoned on appeal. The state
malicious prosecution claims fare no better. They require what the federal claims likewise
require, except that a plaintiff also needs to show that defendants acted with malice. See Martin
v. O’Daniel, 507 S.W.3d 1, 5, 11–12 (Ky. 2016). On appeal, Miller merely argues that the claim
should be reinstated for the reasons that his federal claim should be reinstated. As those claims
fail, so does this one.

* * * * *

For the reasons given above, we affirm the judgment of the district court.
 No. 21-6076 Price v. Montgomery County Page 18

_____________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT
_____________________________________________________

NALBANDIAN, Circuit Judge, concurring in part and concurring in judgment. I agree
with nearly all the majority opinion. But the majority and I part ways on Part III.A, which
concerns prosecutorial immunity. A prosecutor bears the burden of showing that he is entitled to
absolute immunity. And he has two ways of meeting his burden. Option one: he can prove that
1871 common law and history recognized that the relevant conduct would get absolute
immunity. Option two: he can prove that the challenged conduct falls within the traditional role
of an advocate. If a prosecutor can’t satisfy either option, his actions are not entitled to absolute
immunity. And under that framework, two of Prosecutor Craycraft’s actions—advising a
witness and destroying evidence—warrant absolute immunity. But his third action—violating a
court order—is only entitled to qualified immunity. Still, under qualified immunity, he prevails.

I.

Even though the plain language of 42 U.S.C § 1983 doesn’t address immunity for state
actors, the Supreme Court has held that immunity—both qualified and absolute—applies in
actions under the statute.1 The Court first addressed prosecutorial immunity under § 1983 in
Imbler v. Pachtman. See 424 U.S. 409, 420 (1976). Because § 1983 didn’t abrogate immunities
“well grounded in history and reason,” Tenney v. Brandhove, 341 U.S. 367, 376 (1951), Imbler
looked to “the immunity historically accorded [to prosecutors] at common law and the interests
behind it” to decide that prosecutors could receive absolute immunity in § 1983 actions, 424 U.S.
at 421, 427. Extending “common-law immunity” to prosecutors was “based upon” protecting

1
Some have argued that the justification for granting immunity in § 1983 actions—“that Congress wouldn’t
have abrogated common-law immunities absent explicit language”—is “faulty because the 1871 Civil Rights Act
expressly included such language.” Rogers v. Jarrett, 63 F.4th 971, 980 (5th Cir. 2023) (Willett, J., concurring).
Emerging scholarship suggests that the express abrogation of common-law immunities only dropped out of the
statute when “[f]or reasons lost to history, [the language] was inexplicably omitted from the first compilation of
federal law in 1874.” Id. That is, “[t]he Reviser of Federal Statutes made an unauthorized alteration to Congress’s
language.” Id. So, according to this recent scholarship, because the Civil Rights Act of 1871 explicitly abrogated
the common-law immunities grounded in state law, those immunities are abrogated now sub silentio under the
current version of § 1983. Id.; see Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13 (1871); Alexander A. Reinert,
Qualified Immunity’s Flawed Foundation, 111 Cal. L. Rev. 201, 235 (2023).
 No. 21-6076 Price v. Montgomery County Page 19

their discretion “within the scope of their duties”—the same rationale that warranted “common-
law immunities of judges and grand jurors acting within the scope of their duties.”2 Id. at 422–
23 & n.20. Imbler decided that absolute immunity could apply to prosecutors and that it was a
prosecutor’s burden to establish entitlement to absolute immunity. But Imbler didn’t tell us how
a prosecutor meets that burden.

So after Imbler, the Court decided two seminal cases—Burns v. Reed and Buckley v.
Fitzsimmons—that shaped how we determine whether a prosecutor is entitled to absolute
immunity. A prosecutor can establish an entitlement to absolute immunity based on the
approach in either case. In other words, we have two options to prove one common-law burden.
I’ll address each in turn.

A.

First, Burns. 500 U.S. 478 (1991). Burns identified three tools in the prosecutor’s toolkit
for establishing entitlement to absolute immunity. First (and most important), the common law
of 1871. See id. at 494. To “discern Congress’ likely intent in enacting § 1983,” the Court held
that prosecutors should appeal “to American common law and other history” to establish a claim
to absolute immunity. Id. at 493. So prosecutors could take the function at issue—say,
participating in a probable-cause hearing—and demonstrate that the function received immunity
in 1871. See id. at 489–90.

In doing so, prosecutors could appeal to the “several categories of immunities” that “pre–
1871 common-law courts [] recognize[d].” Id. at 499 (Scalia, J., concurring in the judgment in
part and dissenting in part); see id. at 499–501 (laying out (1) judicial immunity, (2) quasi-

2
I remain skeptical as to whether, in 1871, common-law practice recognized absolute prosecutorial
immunity. As some have recognized, history suggests that “prosecutorial action would have enjoyed only qualified
immunity.” Burns v. Reed, 500 U.S. 478, 497 (1991) (Scalia, J., concurring in the judgment in part and dissenting in
part); see Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., concurring) (“There was, of course, no such thing
as absolute prosecutorial immunity when § 1983 was enacted.”); Scott A. Keller, Qualified and Absolute Immunity
at Common Law, 73 Stan. L. Rev. 1337, 1367 (2021) (“While absolute immunity was frequently extended to
government prosecutors throughout the rest of the twentieth century, the common law of 1871 had not recognized
any such immunity.”). Even so, other categories of immunities, as recognized by pre-1871 common-law courts,
might still, as a historical matter, extend to prosecutorial functions. Burns, 500 U.S. at 499–501 (Scalia, J.,
concurring in the judgment in part and dissenting in part). Such categories include (1) judicial immunity, (2) quasi-
judicial immunity, and (3) defamation immunity. Id. But see William Baude, Is Quasi-Judicial Immunity Qualified
Immunity?, 74 Stan. L. Rev. Online 115, 119–20 (2022).
 No. 21-6076 Price v. Montgomery County Page 20

judicial immunity, and (3) defamation immunity); supra n.2. And now, unlike in 1991 when
Burns was decided, we have more tools available to see whether prosecutors have met their
burden. See, e.g., William Baude & Jud Campbell, Early American Constitutional History: A
Source Guide, SSRN (last updated March 13, 2023).

On the policy front, Burns listed two concerns. First, prosecutors should strive to show
that there is a “risk of vexatious litigation” if the action only received qualified immunity.
Burns, 500 U.S. at 494. That’s because absolute immunity was “designed to free the judicial
process from the harassment and intimidation associated with litigation.” Id. And second, a
prosecutor could argue that “several checks other than civil litigation” existed to combat
prosecutorial abuse, so granting absolute immunity would not pose an accountability concern.
Id. at 496. To sum it up, Burns held that prosecutors could use the common law in 1871 plus
two policy justifications to establish an entitlement to qualified immunity.

B.

Then came Buckley. Buckley didn’t change Burns’s burden. Instead, Buckley gave
prosecutors a shortcut to meeting that burden—an alternative to showing that the common law
supported a finding of absolute immunity. Buckley categorized one specific function as having
received common-law immunity in 1871. It labeled this function: the “role as an advocate for
the State.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (“[A]cts undertaken by a
prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the state, are entitled to the protections of absolute
immunity.”).

So post-Buckley, rather than go through the trouble of finding common-law support
through independent historical research in each case per Burns, prosecutors could meet the
“burden of establishing that they were functioning as ‘advocates’ when” committing the conduct
alleged to meet the necessary (but not sufficient) condition for finding absolute immunity. Id. at
274.

To do the Buckley analysis, the Court necessarily had to define what it meant to function
as an advocate. The Court suggested that we should evaluate (1) when the alleged conduct
 No. 21-6076 Price v. Montgomery County Page 21

occurred, and (2) whether that conduct would have traditionally fallen within an advocate’s
discretion (or someone else’s). Id. at 273, 278. I’ll tackle each of these.

First, we look at when the alleged conduct occurred. If the conduct occurred while
“preparing for the initiation of judicial proceedings or for trial” or “presenting the State’s case,”
that timing favors granting absolute immunity. Id. at 270, 273 (citation omitted). But “where the
role as advocate has not yet begun, namely prior to indictment, or where it has concluded,
absolute immunity does not apply.” Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003).

So we can reject an absolute immunity defense if “no adversarial judicial proceeding
[was] taking place” when the challenged conduct occurred. Jackson v. City of Cleveland, 64
F.4th 736, 745 (6th Cir. 2023). And we will do the same if the challenged conduct takes place
“before any probable cause hearing,” “before any arrest warrant was sought,” “before a grand
jury was convened,” Watkins v. Healy, 986 F.3d 648, 662 (6th Cir. 2021), or more generally,
“during [a] preliminary investigation of an unsolved crime,” Buckley, 509 U.S. at 275.

But even if a prosecutor’s conduct occurs in preparation for or perhaps while the trial is
ongoing, that does not mean that absolute immunity will apply. That’s because some “acts in
preparing for those functions . . . would be absolutely immune,” while others—such as those of
“investigation” or “administration”—typically “would not.” Id. at 270, 273 (citation omitted);
see Imbler, 424 U.S. at 431 n.33.

So we turn to the second factor in Buckley: whether the conduct would have traditionally
fallen within an advocate’s discretion or someone else’s. See Buckley, 509 U.S. at 268–69
(explaining that “some officials,” like prosecutors, perform “special functions,” so “absolute
protection from damages liability” is necessary to “protect . . . their discretion”); id. at 278
(explaining that absolute immunity doesn’t cover prosecutorial conduct that serves a purpose
other than advocacy, even if it’s a “vital public function”); Kalina v. Fletcher, 522 U.S. 118, 131
(1997) (explaining that absolute immunity fully protects “the traditional functions of an
advocate”); see generally Westfall v. Erwin, 484 U.S. 292, 297 (1988), superseded by statute as
recognized in Juide v. City of Ann Arbor, 107 F.3d 870, at *3 (6th Cir. 1997) (unpublished table
 No. 21-6076 Price v. Montgomery County Page 22

decision) (noting Congress could provide absolute immunity for nondiscretionary functions that
the common law never traditionally protected).3

To determine whether conduct constitutes a traditional function, we can first ask
“whether the actions in question are those of an advocate” or someone else. Cady v. Arenac
County, 574 F.3d 334, 340 (6th Cir. 2009) (quoting Skinner v. Govorchin, 463 F.3d 518, 525 (6th
Cir. 2006)); see Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) (looking at a prosecutor’s
“capacity as a legal advocate”).4 It’s simple. An advocate’s role is advocacy. He must act
within the “scope of” his advocative “duties”—and that scope usually involves the exercise of
discretion. Kalina, 522 U.S. at 124 (citation omitted); see Imbler, 424 U.S. at 420; Higgason v.
Stephens, 288 F.3d 868, 877 (6th Cir. 2002). So if a prosecutor can perform the conduct within
his discretion as an advocate for the state—such as “the professional evaluation of the evidence
assembled by the police” or the “preparation for its presentation at trial or before a grand jury”—
that conduct gets absolute immunity for falling within the function of advocacy. Buckley, 509
U.S. at 273.

And what’s critical in thinking about the traditional function of an advocate is the
discretion the advocate is exercising—because again, common law absolute immunity was
grounded in the discretion afforded to juries and judges at trial. Imbler, 424 U.S. at 422–23 &
n.20; Kalina, 522 U.S. at 129–30 (reasoning that absolute immunity doesn’t extend to just
anyone “exercis[ing] [] professional judgment”—it extends only to the “exercise of [] judgment
of the advocate” (emphasis added)). And there’s good reason to focus on a prosecutor’s lack of
discretion. Many actions a prosecutor might take in attempting to be an advocate could go well
beyond an advocate’s discretion. For example, a prosecutor could try to influence a plea

3
The Supreme Court’s decision in Westfall v. Erwin was superseded by statute, but the analysis stands.
Indeed, the Court found that “absolute immunity for nondiscretionary functions finds no support in the traditional
justification for official immunity.” 484 U.S. at 297. After that, Congress acted. And it provided what the common
law didn’t—absolute immunity for nondiscretionary functions for federal employees. See Juide, 107 F.3d at *3. By
contrast here, Congress has yet to provide what the common law doesn’t—absolute immunity for state prosecutors’
nondiscretionary actions in the § 1983 context.
4
Our analysis looks at “the nature of the function performed, not the identity of the actor who performed
it.” Buckley, 509 U.S. at 269 (citation omitted). That means, for the sake of the analysis, we don’t grant a
prosecutor absolute immunity just because he is in fact a prosecutor. But the question of who actually performed
the conduct involves a different inquiry from the question of who would have traditionally performed the conduct.
 No. 21-6076 Price v. Montgomery County Page 23

negotiation by directing jailers to beat up a criminal defendant, “beating his wife, kidnapping his
children, or burning a cross on his lawn.” Rouse v. Stacy, 478 F. App’x 945, 954 (6th Cir. 2012).
Each of those acts may further the state’s goals of advocacy. But each fall outside an advocate’s
discretion. See id. at 954–55, 56. And each doesn’t obtain absolute immunity. Id.

And beyond a prosecutor acting outside his discretion as an advocate, some actions a
prosecutor takes may not be advocative—but rather investigative or administrative. See Adams
v. Hanson, 656 F.3d 397, 402, 409 (6th Cir. 2011); see Imbler, 424 U.S. at 431 n.33 (“At some
point, and with respect to some decisions, the prosecutor no doubt functions as an administrator
rather than as an officer of the court.”).5 So, for example, when prosecutors commit acts
traditionally performed by a complaining witness (like testifying in court), see Kalina, 522 U.S.
at 127, an official dealing with the press (like speaking at a press conference), or a police officer
(like fabricating evidence in a police investigation), they “ha[ve] no greater claim to complete
immunity” than those who traditionally performed those actions, see Buckley, 509 U.S. at 274.
Similarly, that’s why the Attorney General of the United States only gets “qualified, rather than
absolute, immunity when engaged in the performance of national defense functions rather than
prosecutorial functions.” Kalina, 522 U.S. at 127. So Buckley looks at the role of the advocate
and the prosecutor’s discretion within that role to determine whether absolute immunity is
warranted.

II.

With that framework in mind, we can analyze whether Prosecutor Craycraft meets his
common-law burden to obtain absolute immunity. Miller alleges that Craycraft committed three
acts: (1) advising a witness; (2) destroying alleged exculpatory evidence; and (3) violating a
court order that directed the prosecution to hand over the evidence to Miller. (Appellant Br. at

5
But one exception on the administrative front: administrative actions taken by a prosecutor can still
receive absolute immunity if the conduct is “tied to the trial process.” Stockdale v. Helper, 979 F.3d 498, 504 (6th
Cir. 2020). “[C]ertain kind[s] of administrative obligation[s]” are “directly connected with the conduct of a trial.”
Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009). The obligations should also “necessarily require legal
knowledge and the exercise of related discretion.” Id. Only those kinds of administrative actions can receive
absolute immunity without the showing of common-law protection. So this takes us back to the first Buckley
factor—timing matters.
 No. 21-6076 Price v. Montgomery County Page 24

53.) Because we’re at the motion-to-dismiss stage, we should credit Miller’s plausible
allegations as true. Leech v. DeWeese, 689 F.3d 538, 542 (6th Cir. 2012).

Craycraft attempts to follow the Buckley rationale by saying that he “is only alleged to
have acted as an advocate.” (Craycraft Br. at 8.) I think that absolute immunity covers the first
two of his actions—advising a witness and destroying evidence—because under Buckley those
functions involve a prosecutor’s discretion in the traditional role of an advocate. But Craycraft
hasn’t shown that the third action—violating a court order—meets either the Burns or Buckley
rationale for establishing absolute immunity.

A.

Start with Craycraft’s first two actions—advising a witness and destroying evidence—
under the Buckley approach. First, we look at when the alleged conduct took place. The conduct
here occurred after Miller’s arrest and indictment for murder and robbery. Craycraft allegedly
advised a witness to destroy evidence in the discovery phase of the criminal action. Seeing that
the alleged acts occurred while “preparing for the initiation of judicial proceedings or for trial,”
the timing here favors granting Craycraft absolute immunity. Buckley, 509 U.S. at 273; cf.
Spurlock, 330 F.3d at 799; Watkins, 986 F.3d at 662.

Next, we look at whether a prosecutor would have traditionally had the discretion to
advise witnesses and get rid of evidence. See Kalina, 522 U.S. at 131; Buckley, 509 U.S. at 278.
The short answer is that he would have. See Imbler, 424 U.S. at 426 (explaining that prosecutors
have “wide discretion” over decisions involving “witnesses” and “presentation of evidence” to
prepare and present the state’s case).

First, advising a witness. Courts have long understood that a prosecutor acts as an
advocate when controlling what witnesses do in preparation for trial. “Prosecutorial decisions
regarding witness testimony, including what witnesses to use at trial and what questions to ask
them, are activities intimately associated with the judicial phase of a criminal trial and, therefore,
are protected by absolute prosecutorial immunity.” Spurlock, 330 F.3d at 798; see Higgason,
288 F.3d at 878.
 No. 21-6076 Price v. Montgomery County Page 25

Buckley recognized that prosecutors act as advocates (and get absolute immunity) when
they exert “an out-of-court ‘effort to control the presentation of [a] witness[’s] testimony.’” 509
U.S. at 272–73 (quoting Imbler, 424 U.S. at 430 n.32) (first alteration in original). That’s why
granting absolute immunity from § 1983 suits for “eliciting false or defamatory testimony from
witnesses” “accord[s] with the common-law absolute immunity of prosecutors.” Id. at 270.
Because prosecutors could traditionally advise witnesses on matters related to the state’s
presentation of its case, I would find that Craycraft acted within his discretion as an advocate.

Second, destroying exculpatory evidence. Imbler acknowledged that prosecutors retain
discretion over what evidence they disclose and that absolute immunity attaches to their exercise
of that discretion. 424 U.S. at 431 n.34. And since Imbler, we have confirmed that prosecutors
receive absolute immunity for the intentional failure to disclose material exculpatory evidence at
trial—i.e., committing Brady and Giglio violations. See Koubriti v. Convertino, 593 F.3d 459,
467, 470 (2010); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986). Such decisions go to the
heart of discretionary actions that prosecutors must make in preparing evidence for trial and
presenting the state’s case. Craycraft’s conduct—getting rid of evidence he didn’t want to use
(and didn’t want Miller to use) at trial—is a discretionary action that warrants absolute
immunity.6 See Imbler, 424 U.S. at 431 n.34 (explaining that even discretionary unlawful acts—

6
To be fair, the idea that destroying exculpatory evidence is protected by absolute immunity seems
incongruous with what ought to be our instincts about fairness and justice. Imbler, 424 U.S. at 441 (White, J.,
concurring in the judgment) (“It is apparent that the injury to a defendant which can be caused by an
unconstitutional suppression of exculpatory evidence is substantial, particularly if the evidence is never
uncovered.”). But this is the natural consequence of Imbler’s conclusion that we look solely to whether the relevant
function serves as an “integral part of the judicial process” or is “intimately associated with the judicial phase of the
criminal process.” Id. at 430 (citation omitted). As far as I can tell, Imbler’s purely functional approach does not
ask whether the actions are an integral part of or intimately associated with a fair or just judicial process or whether
the actions are consistent with the “role” of a fair “advocate” in our system. Buckley, 509 U.S. at 273. And even
though these kinds of inquiries raise the specter of unmoored judicial decision making, they would perhaps not be
out of bounds, considering that the immunity analysis itself is unmoored from the text of § 1983.
It is also a consequence of putting great weight on when the prosecutor’s actions took place, i.e., pre- or
post-indictment. See id. But that timing distinction seems odd. The most relevant timing would seem to be whether
those actions or statements occur “in the course of a court proceeding.” Burns, 500 U.S. at 501 (Scalia, J.,
concurring in the judgment in part and dissenting in part). Some pre-indictment actions surely result in testimony or
exhibits relevant to an actual proceeding, and some post-indictment actions are surely still investigative.
These questions, of course, are not new—the Court has weighed these interests and others in deciding
where to draw the “proper line.” Imbler, 424 U.S. at 431 nn.33 & 34. But some on the Court have questioned the
current state of immunity jurisprudence. And that combined with the Court’s renewed focus on the common-law
foundations of legal doctrine suggests that the Court may want to take a fresh look at this issue. See Baxter v.
 No. 21-6076 Price v. Montgomery County Page 26

like the “knowing use of perjured testimony” and the “deliberate withholding of exculpatory
information”—can be cloaked in absolute immunity to protect the “adversary system”); Koubriti,
593 F.3d at 467, 470; Jones, 800 F.2d at 80.

B.

Finally, the violation of a court order. Until today, our Circuit has not decided whether a
prosecutor acts within the role of an advocate when he violates a clear court order. See also
White ex rel. Swafford v. Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988) (noting in dicta that a
violation of a court order does “not fall within the purview of the protections afforded by Imbler
immunity”). And the Supreme Court has not directly answered the question.

As with the first two acts, Craycraft violated the order during the discovery phase of
Miller’s prosecution. So this timing supports granting absolute immunity.7 See Buckley, 509
U.S. at 273. Even then, however, just because the conduct occurred in preparation for trial isn’t
sufficient to justify extending absolute immunity. We consider more. Id. at 270, 273 (citation
omitted); see Imbler, 424 U.S. at 431 n.33.

So the next question is whether Craycraft has shown that he was acting within his
discretion as an advocate when he violated a court order—one that eliminated nearly all his
discretion. He hasn’t made that showing. Violating a court order that leaves no room for
discretion is not a function an advocate “normally perform[s].” Id. at 274 (citation omitted); see
Odd v. Malone, 538 F.3d 202, 214 (3d Cir. 2008) (“We can imagine few circumstances under

Bracey, 140 S. Ct. 1862, 1864 (2020) (Thomas, J., dissenting from the denial of certiorari) (“[W]e at least ought to
return to the approach of asking whether immunity ‘was historically accorded the relevant official in an analogous
situation at common law.’” (citation omitted)); Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J.,
concurring in part and concurring in the judgment) (“Until we shift the focus of our inquiry to whether immunity
existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress.”);
Keller, 73 Stan. L. Rev. at 1341; see also Rehberg v. Paulk, 566 U.S. 356, 366 (2012) (Alito, J.) (recognizing that
Imbler “did not simply apply the scope of immunity recognized by common-law courts as of 1871”); Kalina, 522
U.S. at 135 (Scalia, J., joined by Thomas, J., concurring) (“Imbler’s principle of absolute prosecutorial immunity . . .
make[s] faithful adherence to the common law embodied in § 1983 very difficult.”).
7
It is worth noting that the timing here pushes the envelope of what 1871 common-law immunities
protected. Craycraft’s conduct, although it involved a court order, took place outside of the courtroom and the grand
jury room, which would take it outside of the protection traditionally extended to defendants in defamation suits.
Burns, 500 U.S. at 501 (Scalia, J., concurring in the judgment in part and dissenting in part) (noting that the common
law afforded absolute immunity to witnesses for “all statements made in the course of a court proceeding” in later
defamation suits).
 No. 21-6076 Price v. Montgomery County Page 27

which we would consider the act of disobeying a court order or directive to be advocative, and
we are loath to grant a prosecutor absolute immunity for such disobedience.”). Such an act does
“not fall within the purview of the protections afforded by Imbler immunity.” White ex rel.
Swafford, 860 F.2d at 665 n.4; see id. (Jones, J., concurring in part and dissenting in part)
(seeking to affirm based on the denial of absolute immunity).

That’s because under Buckley, where a prosecutor has no discretion to act in his role as
an advocate, he can’t get absolute immunity.8 Again, courts give prosecutors absolute immunity
to protect the “wide discretion” they have in carrying out a case. Imbler, 424 U.S. at 426. And
we want to avoid “hamper[ing] [prosecutors] in exercising their judgment” or “prevent[ing] the
vigorous and fearless performance of the prosecutor’s duty that is essential to the proper
functioning of the criminal justice system.” Id. at 427–28.

But there is no wide discretion to violate an explicit court order. “Such an order—
perhaps one enumerating specific documents that the prosecutor must turn over to the
defendant—does not leave room for the prosecutor, fearing future liability, to ‘shade his
decisions[.]’” Munchinski v. Solomon, 747 F. App’x 52, 59 (3d Cir. 2018) (quoting Imbler, 424
U.S. at 423). A prosecutor may challenge the order by appropriate means or comply. See id.
And in choosing whether to comply, “[t]he prosecutor’s duties . . . become ministerial or
administrative, rather than advocative.” Siehl v. City of Johnstown, 365 F. Supp. 3d 587, 598
(W.D. Pa. 2019) (“When a court order, by its terms, severely limits a prosecutor’s discretion, the
prosecutor’s duty in the face of such an order is not to advocate, but to comply.”).

True, some court orders allow for discretion, such as when a court issues a broad order to
disclose “exculpatory” evidence.9 See Reid v. New Hampshire, 56 F.3d 332, 337 (1st Cir. 1995)
(holding that an order requiring the police to turn over “any ‘exculpatory’ evidence” left
discretion to the prosecutors to make judgments on what evidence to hand over). But “[t]he

8
Craycraft would run into the same problem under a Burns analysis too. My guess is that he’d have trouble
showing that the common law in 1871 and its relevant policy justifications would support absolute immunity for
violating a clear court order. In any event, he hasn’t made that showing.
9
As mentioned, prosecutors have discretion to decide what evidence is “exculpatory” and subject to
disclosure. See Koubriti, 593 F.3d at 467, 470; Jones, 800 F.2d at 80.
 No. 21-6076 Price v. Montgomery County Page 28

more discretion a judicial order eliminates from the prosecutor’s role, the more likely it is that a
violation of that order strips the prosecutor of absolute immunity.” Munchinski, 747 F. App’x at
58–59. And “[a]n obligation to carry out a clear court order involves no exercise of discretion.”
Jordan v. Sinsheimer, 531 N.E.2d 574, 576 (Mass. 1988).

The court order in this case specified exactly what evidence Craycraft had to turn over to
defense counsel.10 The court first stated that it found the specific documentary “evidence []
exculpatory in nature and necessary to the defense of Defendant Nicki Miller.” (R. 118-70,
Court Order, p. 1.) The court then ordered that state officials “immediately go to [two
defendants] and retrieve from [them] all correspondence, letters and emails” that they sent each
other. (Id.) Because the order “was ex parte, the only persons privy to the order were Court
staff, the defense team, and the prosecution team assigned to the case.” (R. 1, Complaint, p. 25
¶ 162.) Importantly, “Craycraft was one of the limited individuals privy to the . . . sealed order.”
(Id.) And after learning about the order, the complaint further alleges that Craycraft prompted
the destruction of the evidence in violation of the order. (Id., p. 26 ¶ 170–74.) So a plain reading
of the complaint and the court order shows that Craycraft was presented with and made subject
to the court order.

The court order had one directive—turn over the specific evidence. The order left no
room for debate about whether particular evidence was exculpatory, relevant, or otherwise
privileged. See Reid, 56 F.3d at 337. It involved no trial preparation, no strategy, no close calls
on the evidence. Craycraft could either comply or challenge the order through lawful means.
Those were the only two options. But violating the order was not within his discretion as an
advocate. So he has failed to establish that he is entitled to absolute immunity. See Buckley, 509
U.S. at 273. Further, he has not otherwise proven that he would receive absolute immunity under

10
The majority states that the order was not specifically “directed to” Craycraft but to the state more
generally. (Maj. Opinion at 12.) And because of that, the majority “leave[s] the question” of whether a prosecutor
receives absolute immunity for violating a court order directed specifically to him “for resolution in a future case.”
(Id.) But the difference between a court order directed to the state generally or a specific prosecutor creates a
distinction without a difference—especially here, where, as the majority notes, Craycraft was “assigned to take lead
on the case.” (Id. at 6.) Either way, the court order was sent by the court to protect specific documentary “evidence
[] exculpatory in nature and necessary to the defense” in Miller’s prosecution. (R. 118-70, Court Order, p. 1.) And
Craycraft, the “lead” prosecutor on the case, (Maj. Opinion at 6), received and violated that order, even though it
also bound his discretion. (R. 1, Complaint, p. 25 ¶¶ 162, 170–74.)
 No. 21-6076 Price v. Montgomery County Page 29

1871 common law. See Burns, 500 U.S. at 494. In the end, Craycraft failed to meet his
common-law burden under either Buckley or Burns.

Lastly, it is important to recognize why courts should treat prosecutors who violate
restrictive court orders differently from those who fail to meet their obligations under Brady or
other blanket criminal rules. Prosecutors face routine restrictions in preparation for trial. And
Brady is a good example of that. Brady v. Maryland, 373 U.S. 83, 87 (1963) (restricting
prosecutors from suppressing material evidence favorable to the accused upon request). But
even rules like Brady require prosecutors to make judgment calls.

Under Brady, prosecutors must determine “what evidence in their possession [i]s
‘exculpatory’ and subject to disclosure.” Reid, 56 F.3d at 337. That know-how is what makes a
Brady violation inapposite to the court-order violation here. In exercising discretion as an
advocate, prosecutors can place evidence aside that they believe is not material either to guilt or
punishment. See generally Imbler, 424 U.S. at 425 (recognizing that prosecutors “inevitably
make[] many decisions that could engender colorable claims of constitutional deprivation”).
And they can do so while protected by absolute immunity. See id. at 431 n.34; Koubriti, 593
F.3d at 467, 470; Jones, 800 F.2d at 80.

But things change when a prosecutor is stripped of all discretion. And a court order that
directs the state to turn over specific pieces of evidence does just that. When that happens, as I
explained above, there is no longer any judgment call for the prosecutor to make. And for that
reason, Craycraft’s violation of the court order should be treated differently from destroying
Brady evidence.

III.

Even when a prosecutor doesn’t get absolute immunity under § 1983, he can get qualified
immunity, which the Supreme Court has presumed will provide a sufficient shield from liability.
Burns, 500 U.S. at 486. To overcome a defendant’s qualified immunity defense, a plaintiff must
plausibly allege that (1) the official violated a federal statutory or constitutional right, and (2) the
right was “clearly established” at the time of the conduct. Moderwell v. Cuyahoga County, 997
F.3d 653, 659–60 (6th Cir. 2021). So even after a prosecutor fails to establish absolute
 No. 21-6076 Price v. Montgomery County Page 30

immunity, the plaintiff must overcome the defendant’s asserted qualified-immunity defense.
Compare Burns, 500 U.S. at 493, with Moderwell, 997 F.3d at 659–60. And here, Miller failed
to meet the burden. Miller has neither proven that violating a court order constitutes a
constitutional violation, nor that such a violation is clearly established. As a result, Craycraft is
entitled to qualified immunity. And I would affirm on that basis.11

11
The district court did not address qualified immunity because it found that absolute immunity applied.
That said, Craycraft raised qualified immunity in his motion to dismiss, though it was not the focus of his argument.