NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0016n.06
Case Nos. 23-5045/5047
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 11, 2024
) KELLY L. STEPHENS, Clerk
DANIEL CREGER,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
ANDREW TUCKER (23-5045); TOWN OF )
SMYRNA, TENNESSEE (23-5047), )
Defendants-Appellants. ) OPINION
)
Before: McKEAGUE, STRANCH, and NALBANDIAN, Circuit Judges.
McKEAGUE, Circuit Judge. Andrew Tucker, a law enforcement officer in the Town of
Smyrna Police Department, appeals the district court’s denial of qualified immunity against two
malicious-prosecution claims filed by Daniel Creger under 42 U.S.C. § 1983. The Town of
Smyrna, co-defendant in Creger’s suit, similarly challenges the district court’s order.1 The court
below denied the defendants’ motions for summary judgment because none of the parties had
clearly identified undisputed facts that were relevant and material to the claims at issue. Tucker
argues that the district court erred by (1) failing to find, as a matter of law, that he did not commit
a constitutional violation and (2) failing to find that no clearly established law, on the particularized
facts of this case, would have put him on notice that his acts were unlawful. The Town of Smyrna
argues that because there was no constitutional violation in the case, this Court possesses pendant
1
In citations, briefs for case number 23-5045 are “Tucker Appellant’s Brief,” “Creger I Appellee’s
Brief,” and “Tucker Reply Brief.” Citations to briefs in case number 23-5047 do not appear.
Nos. 23-5045/5047, Creger v. Tucker, et al.
jurisdiction over the district court’s denial of summary judgment. On the merits, the Town argues
we should reverse.
Because Officer Tucker did not commit a constitutional violation, we REVERSE the
district court’s denial of summary judgment to Tucker and the Town of Smyrna on both claims.
I. BACKGROUND
This appeal arises as the result of a contentious divorce that spilled over into a criminal
investigation, criminal charges of harassment and stalking, and acrimonious litigation that ended
up ensnaring the Town of Smyrna Police Department. On February 4, 2021, Daniel Creger sued
Officer Andrew Tucker and the Town of Smyrna (“the Town” or “Smyrna”) under 42 U.S.C.
§ 1983 for two counts of malicious prosecution. Creger alleged that Officer Tucker, a police officer
in the Smyrna Police Department, filed two sets of unfounded criminal charges against Creger in
May and June 2019. Specifically, Creger alleged that Officer Tucker filed two sets of misleading
warrant affidavits—one for stalking and harassment on May 22, 2019, and another for aggravated
stalking and criminal contempt on June 6, 2019. From those charges came several court
appearances, brief incarceration, dismissal and expungement of Creger’s criminal records, and
protracted § 1983 litigation.
This case presents a thorny factual and procedural history—a problem created in large part
by the parties. Officer Tucker and Smyrna made the inexplicable choice to present to the district
court a statement of facts that contained 315 “purportedly” material facts. Order Den. Summ. J.,
R.98 at PageID 1462. Creger’s actions did not help. In his response, he disputed more than fifty of
those facts in whole or in part. Even where he did not dispute certain facts for the purpose of
summary judgment, he often felt the need to lodge separate objections—ones that were generally
irrelevant to the factual accuracy of the defendants’ statements. By the time Creger filed his
response to the defendants’ statement of facts, the document had “balloon[ed]” to ninety-five
pages. Id. In support of their proposed statement of facts, Officer Tucker and Smyrna filed more
2
Nos. 23-5045/5047, Creger v. Tucker, et al.
than 220 pages of exhibits. In response, Creger filed a staggering 450 pages of exhibits—in support
of only two malicious-prosecution claims. Because of the parties’ tactics, the district court chose
not to “determine whether the relevant and material facts are truly undisputed,” given the
“voluminous filings” each party made in support of its position. Id.
Ultimately, the district court made no factual findings, determining that neither party
carried its burden to establish that any material facts were or were not genuinely disputed. The
court also declined to find explicitly that Tucker and Smyrna were not entitled to judgment as a
matter of law, resting solely on its determination that neither party had properly shown that factual
disputes permitted or precluded summary judgment. We note here that, although the parties’
litigation tactics unnecessarily complicated this lawsuit and appeal, the district court also bears
some of the blame for failing to identify whether any material facts were subject to genuine dispute.
Qualified immunity is an immunity from suit, an immunity that may be lost if officers are
erroneously subjected either to trial or to undue litigation burdens. See Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). It must be addressed at the “earliest possible stage of litigation.” Goad v.
Mitchell, 297 F.3d 497, 501 (6th Cir. 2002). As understandable as the district court’s frustration at
the parties’ litigation strategies might be, its failure to issue a substantive ruling on qualified
immunity in this case was improper. If the district court believed the parties’ filings prevented it
from making a substantive ruling, it had several tools at its disposal: striking the filings, perhaps,
or ordering refiling with page limitations or supplemental briefing.
Regardless, we may conduct our own review of the record to resolve this particular case.
On appeal of a denial of qualified immunity, we construe the facts in the light most favorable to
the plaintiff. Coffey v. Carroll, 933 F.3d 577, 584 (6th Cir. 2019). Because the district court did
not make any factual findings, we undertake here a “detailed evidence-based review of the record”
so that we may accurately assess Officer Tucker’s legal claims on appeal. Johnson v. Jones, 515
U.S. 304, 319 (1995). So, in service of our jurisdiction and of properly assessing factual disputes
3
Nos. 23-5045/5047, Creger v. Tucker, et al.
where a denial of summary judgment is before us, the factual recitation that follows broadly
assumes the plaintiff’s facts to be true where any such facts are disputed.
We note that, for the purposes of this appeal, the parties do not dispute that Officer Tucker’s
involvement in Creger’s prosecution ended after Tucker wrote and submitted his arrest warrants.
Because malicious-prosecution claims under § 1983 turn on an officer’s actions to the extent that
the officer “made, influenced, or participated” in the state’s eventual choice to prosecute, Coffey,
933 F.3d at 590 (quoting King v. Harwood, 852 F.3d 568, 583 (6th Cir. 2017)), we generally limit
our factual recitation here to those facts in the record that bear on what Officer Tucker knew—or
should have known—at the time that he swore each warrant affidavit.
A. Family History
Daniel and Evon Creger married in August 2005. Soon after their marriage, Daniel Creger2
was charged for two misdemeanor domestic abuse counts in Wisconsin that he allegedly
committed against Evon while she was pregnant with the couple’s first child. Following a 2008
jury trial, he was convicted only on the lesser of the two charges. The couple shares two minor
daughters: K.C., who was thirteen years old in 2019 when Officer Tucker filed criminal charges
against Creger, and A.C., who was eleven years old at the time.
On January 18, 2019, Evon Creger petitioned for divorce. On May 6, she amended her
petition. Following that, Evon rented a house on Easy Goer Way in Smyrna and moved in with her
daughters. Upon moving, Evon took care not to share her new address with Creger, explaining
later that she did not want him to know her new address because of their history together. As of
May 22, 2019, only a couple of weeks after Evon moved with her daughters into a new residence,
Creger and Evon had not yet agreed on a specific parenting plan for sharing custody of their
children. Because they needed to coordinate schedules to take care of their daughters, Creger and
his wife communicated fairly frequently through both email and text messages. Those
2
Referred to here as “Creger.” Evon Creger appears as “Evon” or “Evon Creger.”
4
Nos. 23-5045/5047, Creger v. Tucker, et al.
communications set the stage for the events that formed the basis for Daniel Creger’s first set of
criminal charges, which is when Officer Tucker entered the picture.
B. Facts Underlying Creger’s First Claim for Malicious Prosecution
Early on the morning of May 22, 2019, Evon texted Creger to ask if he would be interested
in picking up his daughters from school: “Would you like to pick up [A.C.] today? [K.C.] gets off
the bus at 3:30pm, [A.C.] can be picked up as early as 3:15pm. I can come by and get them around
7pm.” May 22 Text Messages, R.84-5 at PageID 648. Creger did not respond for more than five
hours, prompting Evon to text him again in the late morning: “Please respond by noon. Thank
you.” Id. At 11:44 AM, Creger said, “Sure I’ll pick them up. I’ll bring them back to your house,
what is the address?” Id. at PageID 649. Soon after, Creger added, “Plus I have added $500 more
dollars into the account than you, please add the funds or subtract it from what is due for the
lacrosse stuff.” Id. Evon did not respond, later claiming—in a deposition—that she became scared
because the “gap in time” between texts was “completely out of character” for Creger. Evon Creger
Dep., R.84-14 at PageID 677. As she explained in her eventual call to Smyrna Police dispatch, she
believed that Creger “got news today that someone in his family . . . was being investigated for
inappropriate things with one of our daughters.” Dispatch Recording at 04:17. After several hours,
Creger broke the (textual) silence at 2:24 PM, saying, “Seriously I don’t understand why you are
not giving me your address, it is probably easy to find… I’m entitled to know where my daughter’s
[sic] are sleeping.” May 22 Text Messages, R.84-5 at PageID 650 (ellipsis in original).
Evon Creger claims she became frightened after receiving this final message; Officer
Tucker claims she later disclosed that fact to him. See Tucker Appellant’s Br. 36; Evon Creger
Dep., R.84-14 at PageID 677. No record document—other than Officer Tucker’s post-interview
reports, see May 22 Incident Report, R.84-3 at PageID 645—directly indicates that Evon Creger
explicitly communicated to Officer Tucker her emotional state following this text exchange, a
point that Creger argues vehemently on appeal. The parties agree, though, that Evon decided to
5
Nos. 23-5045/5047, Creger v. Tucker, et al.
call her divorce attorney to describe the exchange she had with Creger, who suggested that Evon—
rather than Creger—pick up the two girls.
So, sometime before 3:30 PM on May 22, Evon picked up A.C. from her afterschool
location and K.C. from where she got off the bus. Creger also attempted to pick up A.C. but found
that she had already left with Evon. Creger drove toward K.C.’s bus stop, stopping at a red light at
approximately 3:30 PM. At exactly the same time, Evon stopped at the same intersection, directly
across from Creger’s car. Having seen Creger across the intersection, Evon texted him: “Please
have your attorney contact my attorney. I have the girls. They are safe and happy.” May 22 Text
Messages, R.84-5 at PageID 650. Creger immediately responded, “No deal!” Id. at PageID 651.
Evon did not respond.
Both Evon and Creger began driving away from the intersection, with Creger pulling
behind Evon’s car while she drove. The parties disagree on exactly how closely Creger followed
Evon, but the parties do not dispute that Creger followed Evon and that Evon later told Smyrna
Police Dispatch that Creger had been following her car “in a very threatening manner.” Dispatch
Recording at 01:00–01:11. In the following minutes, Creger sent another series of texts: “You are
keeping me from the girls….” and “See you in court, the judge is going to not like this.” May 22
Text Messages, R.84-5 at PageID 651 (ellipsis in original). During this time, Creger followed
Evon’s car—with their daughters inside—for several miles. Eventually, Creger’s and Evon’s paths
diverged—Evon later told Smyrna Police Dispatch that she had contacted her divorce attorney,
who advised her to drive to the police department. Creger disputes on appeal many facts that
Officer Tucker presents about exactly what Creger’s daughters saw, felt, and said while their
parents engaged in this behavior. But Creger concedes that, at a minimum, Evon told Officer
Tucker that one of her daughters said, “Dad is following us, Mom.” May 22 Evon Creger Witness
Statement, R.84-4 at PageID 646.
Upon arriving at the Smyrna Police Department, Evon went inside the lobby and called
police dispatch. In the call, Evon asked for an officer to meet her so that she could file a report.
6
Nos. 23-5045/5047, Creger v. Tucker, et al.
She indicated that she was in the midst of a divorce, that she had a custody hearing scheduled for
May 30, that she had just picked up her daughters, and that her husband had followed her car “in
a very threatening manner.” Dispatch Recording at 00:35–01:05. She described to dispatch the
route that she, her daughters, and Creger had taken before Creger stopped following the car,
indicating that she thought he had “started figuring out” that Evon was driving to the police
department. Id. at 01:23–01:35, 02:30–03:00. She stressed that she perceived him to be following
her car very closely, emphasizing that her daughters were in the car and that “they said” to her that
their father was following them. Id. at 03:05–03:13. She told dispatch that Creger did not have her
current address and that he had a history of anger and domestic violence. She also conveyed her
belief that Creger had received news about an investigation Evon had been seeking regarding
allegations one of her daughters made about Creger’s mother. Because she believed he had found
out about this investigation, Evon told dispatch that his “eerie radio silence” following her initial
text led her to question his mental state. Id. at 04:50–05:06. She then indicated that Creger’s
message asking for her address—which she said he knew she did not want to give him—and then
saying the address was “easy to find…” led her to call her attorney, pick up her daughters, and go
to the police on her attorney’s suggestion. Id. at 05:55–06:12, 06:28–06:43.
Smyrna Police dispatched Officer Tucker to speak with Evon and her daughters at the
police department. Construing the evidence in Creger’s favor, the parties agree that Evon described
the incident to Officer Tucker, who summarized the conversation later in an incident report. During
the interview—which was recorded but that the Smyrna Police Department failed to preserve, see
Creger I Appellee’s Br. 29–30—Evon showed Officer Tucker the texts that she and Creger had
exchanged. She also sent him an electronic copy of the messages. Officer Tucker further
interviewed the couple’s daughters. Upon finishing the interview, Evon completed and signed a
written statement describing the day’s events, generally repeating facts she described on the call
to Smyrna Police Dispatch. Relevant to the disputes before us on appeal, Evon indicated in her
statement that one of her daughters told her that Creger was following them. Evon also stated that
7
Nos. 23-5045/5047, Creger v. Tucker, et al.
she responded to Creger’s texts—saying to contact her attorney—at her attorney’s “direction.”
May 22 Evon Creger Witness Statement, R.84-4 at PageID 646–47. Missing from that statement
is any description of her or her daughters’ mental or emotional states.
At 4:50 PM that day, Officer Tucker called Creger to talk to him about the events that had
occurred earlier in the afternoon. Officer Tucker explained that he had spoken with Evon, who had
told Tucker there had been an “issue” with Creger “following” Evon earlier in the day. Tucker–
Creger Recording at 00:26–00:40. Creger responded, “She took off with my children.” Tucker
said, “Okay.” Creger continued, “I almost called 911.” Id. at 00:40–00:42. Creger did not deny
that he had followed Evon. Officer Tucker asked Creger to explain, and Creger told him that they
agreed he would pick up his daughters and that Creger believed Evon had decided to withhold
their daughters from him. Officer Tucker told Creger that Evon was worried—that she had a
“fear”—that Creger was trying to figure out where she currently lives. Id. at 01:09–01:14. Creger
objected, claiming it was his right to know where his daughters lived. Officer Tucker rejoined,
“No, it’s not.” Id. at 01:17. Tucker further stated that because no parenting plan was in place, Evon
could take her daughters where she wanted.
Officer Tucker explained to Creger that he had seen the text messages between the two
parents, and he indicated to Creger that he thought Evon had become scared when Creger asked
for her address. After Tucker questioned Creger multiple times about why he had followed his
wife and daughters for several miles, Creger responded—twice—that “we had an agreement” that
“I was supposed to have the kids.” Id. at 03:54–04:08. Upon further questioning, Creger invoked
his right to have an attorney present. In response, Officer Tucker said, “Okay. That’s fine. As of
right now, I’ll probably be taking out a harassment charge against you, as well as a stalking charge.
So I’ll be in contact with you to see about you coming to turn yourself in in a little while, okay?”
Id. at 04:27–04:39. The call terminated.
8
Nos. 23-5045/5047, Creger v. Tucker, et al.
Immediately afterward, Officer Tucker filled out two warrant affidavits against Creger: one
for harassment in violation of Tennessee Code § 39-17-308 and one for stalking in violation of
§ 39-17-315. The probable cause testimony in the harassment affidavit read, in its entirety:
On 5/22/2019, Daniel Creger was told by Evon Creger, his wife/victim, to have his
attorney contact her attorney for future conversation. Mr. Creger then sends 3
messages in repetition first “No deal!”. Then, “You are keeping me from the
girls….”. Finally, [“]See you in court, the judge is not going to like this.”. This
stems from Ms. Creger not telling him what her new home address is as they are
currently going through a divorce. After being told to cease direct contact was
followed by a string of texts that the victim felt was annoying and offensive.
May 22 Harassment Aff., R.84-7 at PageID 654 (ellipsis in original). The probable cause testimony
in the warrant for stalking read, in its entirety:
On 5/22/2019 Daniel Creger texted Evon Creger (wife/victim), asking for her
address in reference to dropping off their children at her new home. Mrs. Creger
and the offender are currently going through a divorce, and she does not want him
knowing where she lives, as she states Mr. Creger has a history of violence, and she
is afraid to tell him where she lives.
She does not answer the text, and he then sends another text saying “Seriously I
don’t understand why you are not giving me your address, it is probably easy to
find… I’m entitled to know where my daughter’s are sleeping.” After this the
victim was instructed by her attorney to not let him have the children. She went to
the bus stop where Mr. Creger was supposed to pick up one of the children. She
was able to get the child at Almaville Farms apartments, but the children noticed
their father following behind Mrs. Creger after she right [sic] to leave the apartment
complex.
The children and Mrs. Creger stated that he was following extremely closely, and
could physically see the father in the driver seat, and a sticker in the upper corner
of the car that matches the same sticker on the same Audi sedan owned by the
father. Mr. Creger followed them from Almaville Rd to Interstate 24, to Sam Ridley
Pkwy W, and finally left the area around the intersection of Sam Ridley and Old
Nashville Hwy. This caused Mrs. Creger enough emotional distress that she felt the
only safe thing to do was drive to the Smyrna Police Department rather than go to
her home.
May 22 Stalking Aff., R.84-8 at PageID 655 (ellipsis in original) (paragraph breaks added for
legibility). Officer Tucker presented these two affidavits to a Smyrna Municipal Court judicial
commissioner, who reviewed and signed the affidavits, authorizing Creger’s arrest.
9
Nos. 23-5045/5047, Creger v. Tucker, et al.
The two charges that resulted from Officer Tucker’s May 22 affidavits form the basis for
Creger’s first § 1983 claim of malicious prosecution.
C. Facts Underlying Creger’s Second Claim for Malicious Prosecution
The events leading to the second set of charges that Andrew Tucker filed against Daniel
Creger began immediately after Tucker swore the first set of warrant affidavits.
On the evening of May 22, 2019, Evon Creger sought and obtained an ex parte civil order
of protection against Daniel Creger. Officer Tucker—who, according to Creger, helped Evon
obtain the order—signed the proof-of-service section on the order immediately after the judicial
commissioner authorized it. Officer Tucker signed the order in the location designating that it had
been served on the respondent—Creger—even though it had not been. Tucker attributes this to
mistake. Creger, at least in his pleadings before the district court, disputes that Officer Tucker’s
act was unintentional. Among other things, the order required Creger not to “frighten,” “stalk,”
“come about,” or contact “either directly or indirectly” Evon and their two daughters. Order of
Protection, R.84-12 at PageID 668. The order directed the parties to appear at a hearing regarding
continuing the order on June 3. Evon’s divorce attorney emailed Creger’s divorce attorney on the
morning of May 23, 2019, notifying Creger’s attorney that Evon had obtained a protection order
against Creger. The parties dispute, though, whether Creger knew about that order at the same
time. At the latest, Creger concedes, he became aware of the civil order by June 3, which is when
Creger’s and Evon’s attorneys agreed to consolidate the ex parte order with the divorce action. On
June 3, Creger went to the police department to complain about Officer Tucker filing criminal
charges against him. Importantly, Creger concedes that Officer Tucker knew—prior to filing the
June 6 warrant affidavits—that Creger had gone to the Smyrna Police Department on both June 3
and June 4 to complain about the May 22 charges and the ex parte civil order.
Earlier, though, on May 24, Creger went to the Smyrna Police Department to turn himself
in on the May 22 warrants. After being taken into custody, Creger appeared before another judicial
10
Nos. 23-5045/5047, Creger v. Tucker, et al.
commissioner, who gave Creger a court date of June 5 and signed an order granting bail. Creger
signed and dated the form outlining bail conditions. The conditions—which Creger admits he
received in this May 24 hearing—directed Creger to, among other things, “stay away from the
home of the alleged victim and to stay away from any other location where the victim” Evon is
“likely to be.” Pl.’s Resp. to Defs.’ Joint Statement of Facts, R.91 at PageID 1560.
Creger then made his appearance on June 5 in Smyrna Municipal Court for the May 22
harassment and stalking charges. At the hearing, a municipal and general sessions judge for the
Town of Smyrna went over Creger’s criminal bond conditions with him, making clear that Creger
was to have “no contact” with Evon Creger. Judge Aff., R.84-21 at PageID 709–10. Creger’s
attorney asked the judge if the conditions prevented Creger from speaking with his daughters. The
judge—whose jurisdiction does not include chancery court civil orders of protection and who had
not been informed of any other court orders by the parties’ attorneys—told Creger that, based on
the bond conditions, he could speak with his daughters. Id. at PageID 710. That evening, Creger
sent K.C. a text, which he ended by asking K.C. to tell A.C. that he also missed her. K.C. did not
respond. Creger sent K.C. three additional text messages on June 6. Again, K.C. did not respond.
Also on June 5, Evon learned that a neighbor had seen Creger on Easy Goer Way, where
she had moved with the couple’s daughters. Evon called Smyrna Police Dispatch to speak with
Officer Tucker, who returned her call on June 6. Officer Tucker claims Evon told him when they
spoke that Creger had somehow “located her address.” Tucker Appellant’s Br. 17. Creger disputes
that fact, largely because Evon’s second witness statement—which she made following her June
6 conversation with Officer Tucker—does not contain that allegation. See June 6 Evon Creger
Witness Statement, R.84-24 at PageID 728. Officer Tucker’s incident report, which he also made
after speaking with Evon, says that Creger “had located [Evon’s] address.” June 6 Incident Report,
R.84-23 at PageID 724.
After speaking with Evon over the phone on June 6, Officer Tucker ventured to Easy Goer
Way to speak with the witnesses Evon had identified. First was Grant Inghram, one of Evon’s
11
Nos. 23-5045/5047, Creger v. Tucker, et al.
neighbors. Grant’s witness statement indicates that Evon’s sister had, the week before, asked Grant
whether he had ever seen a black Audi A8—Creger’s car—on the street. According to the
statement, Grant then saw that car on June 2 pulling into the driveway of an open house that Grant’s
wife, a realtor, was hosting on the street. Grant saw Creger’s car leave the open house, drive toward
Evon’s house, abruptly change direction, and leave the neighborhood going the opposite way.
Officer Tucker then spoke with Grant’s wife, Lindsey Inghram, who also wrote a witness
statement. Lindsey confirmed she had hosted an open house on June 2. She also confirmed that
Creger had attended. In her statement, Lindsey said that Creger showed “little interest” and asked
“no questions about” the property. L. Inghram Witness Statement, R.84-24 at PageID 729.
Because, she claimed, there were no signs in the area directing members of the public to the open
house, she thought his explanation that he knew about the open house from driving around the
neighborhood seemed “odd.” Id. According to Lindsey’s statement, she asked Creger about his
work, and they talked about the fact that he was going through a divorce. Because Creger “didn’t
have an agent” and “had no timeline to move,” Lindsey wrote that she felt he was “not a legit
buyer.” Id.
Creger contends that his presence on June 2 at an open house on the same street where his
soon-to-be-divorced wife and daughters lived was a complete coincidence. And, given the factual
posture of this appeal, we take him at his word. Indeed, certain evidence suggests that Creger did
not intentionally violate his bond conditions, which he admits he knew about because of his
appearance in Smyrna Municipal Court on May 24. For instance, Creger later explained in a
deposition that his abrupt about-turn and departure from the neighborhood stemmed from the fact
that he had recognized one of his daughters outside Evon’s house and realized that he needed to
leave the area to avoid violating his bond conditions. But Creger does not—and cannot—dispute
that the Inghrams’ declarations to Officer Tucker contain statements indicating that they found
Creger’s actions suspicious.
12
Nos. 23-5045/5047, Creger v. Tucker, et al.
After speaking with Lindsey and Grant Inghram, Officer Tucker then spoke to Evon and
K.C. at their house on Easy Goer Way. They told Officer Tucker about the texts that Creger had
sent to K.C., providing Officer Tucker with screenshots of the texts for his police report. Tucker
then went to a neighboring sheriff’s office to take out three warrants for violations of the civil
order of protection. In his police report that evening, Officer Tucker stated that Creger was “made
aware” of the civil protection order on May 24 when he turned himself in on his first set of criminal
charges. June 6 Incident Report, R.84-23 at PageID 725. Creger disputes that point, admitting only
that he had been made aware of the civil order—as distinct from the conditions imposed on his
bond—on June 3, one day after the open house incident. Regardless, though, Creger does not
dispute that Evon’s June 6 written statement indicated to Officer Tucker that Evon, who had “an
order of protection in place” stating that “Dan Creger is not to contact or be near my (2) daughters
or me,” believed Creger knew about the civil order. June 6 Evon Creger Witness Statement, R.84-
24 at PageID 728.
At the sheriff’s office, a magistrate informed Officer Tucker that knowledge of an order of
protection could serve as probable cause for aggravated stalking, a felony in Tennessee. Tucker
then returned to the Smyrna Police Department to fill out three warrant affidavits for aggravated
stalking in violation of Tennessee Code § 39-17-315(c) and one warrant affidavit for criminal
contempt—for violating bail conditions—in violation of §§ 16-15-713 and 40-11-150. The
probable cause testimony in each aggravated stalking affidavit—one for Evon, one for K.C., and
one for A.C.—read, in its entirety:
On 06/06/2019, I made contact with the victim, Evon Creger. She stated that her
neighbors observed Daniel Creger at an open house several houses down from her
own at 618 Easy Goer Way, on 06/02/2019. One of the witnesses was the Realtor
at the home, and stated that the man in question identified himself as Dan Creger,
he had two daughters, and was looking to move into the area. He also stated that he
was going through a divorce. She stated that he told him [sic] that he saw the open
house signs and wanted to come by. The witness told me that there were no open
house signs directing anyone to the open house on the same road that Mr. Creger’s
soon to be ex wife was currently living in.
13
Nos. 23-5045/5047, Creger v. Tucker, et al.
The second witness, the husband of the first witness, was at their home (across the
street from the victim’s home), and noticed a dark colored Audi A8 parked at the
open house. He had been made aware to be on the lookout for that specific car and
Mr. Creger. He observed Mr. Creger get into the Audi, and then proceed down the
street toward the victim’s home. Mr. Creger then saw that the victim was outside,
and immediately turned into a drive way just before her home, and turned around.
He then sped off at a high rate of speed out of the neighborhood.
Prior to this incident, Mr. Creger had not been made aware of the victim’s home
address. The victim did not want him to know her address. Mr. Creger found her
address, and then proceeded to go to her neighborhood, street, and attempted to
drive past her home all while being well aware that there was an Ex Parte Order
issued commanding him to stay away from the victim. The two daughters shared
between the suspect and victim, [K.C.] (13) and [A.C.] (11) were at the home at the
time of the offense, and are listed in the Ex Parte Order.
June 6 Aggravated Stalking Affs., R.84-27, PageID 745, 747, 749 (first paragraph break added for
legibility). The probable cause testimony in the criminal contempt affidavit read, in its entirety:
Daniel Creger with active bond conditions for stalking and harassment against his
wife, Evon Creger (victim), uncovered the victim’s new address on Easy Goer Way,
and went to an open house several houses down from the victim’s home, and then
attempted to drive past her home until he discovered that Mrs. Creger was outside
of her home with one of their daughters showing the teenager how to use the garage
door code, as witnessed by a neighbor who wrote a sworn statement. The active
bond conditions state that the suspect is to stay away from the home of the victim
or any location where the victim is likely to be.
June 6 Criminal Contempt Aff., R.84-28 at PageID 751. A judicial commissioner signed the four
warrants, authorizing Creger’s arrest. Creger turned himself in on June 10, 2019.
The four charges that resulted from Officer Tucker’s June 6 affidavits form the basis for
Creger’s second § 1983 claim of malicious prosecution.
D. Outcome of Criminal Charges
After turning himself in for each of the above charges, Creger served a mandatory twelve-
hour “hold,” which is a required period of incarceration under Tennessee’s stalking laws that
defendants must serve before being permitted to post bond. See Tenn. Code Ann. § 40-11-
150(h)(1). Creger served his twelve-hour hold for the first stalking charge when he turned himself
14
Nos. 23-5045/5047, Creger v. Tucker, et al.
in on May 24. He again served a twelve-hour hold when he turned himself in on June 10 for the
aggravated stalking charge.
On August 7, 2019, Creger entered into an agreement with the Rutherford County District
Attorney General’s Office to dismiss his May 22 stalking charge. Prosecutors further agreed to
retire Creger’s stalking offenses after six months contingent on him satisfying certain conditions.
On February 5, 2020, a Smyrna court dismissed the stalking charges because Creger met the
conditions for retirement. At that hearing, the court signed an order retiring the criminal contempt
charge for thirty days. On March 16, 2020, a Smyrna court expunged all of Creger’s criminal
charges from May 22 and June 6, 2019.
E. Procedural History
On February 4, 2021, Daniel Creger, first filing under a pseudonym, sued Officer Andrew
Tucker and the Town of Smyrna under 42 U.S.C. § 1983 for two counts of malicious prosecution
in violation of Creger’s Fourth Amendment rights. After the district court denied his motion to
proceed with litigation under a pseudonym, Creger filed an amended complaint in his own name
on September 13, 2021. Creger alleged that Officer Tucker filed false charges on both May 22 and
June 6 that resulted in Creger’s arrest without probable cause. Creger further alleged that the
Town’s policies, training, supervision, and disciplinary practices “created an environment of
reckless disregard for the risk” that officers in the Smyrna Police Department would falsely file
criminal charges authorizing arrests without probable cause. Smyrna and Officer Tucker both
answered the amended complaint on September 27, 2021.
The case proceeded for more than a year through discovery before Officer Tucker and the
Town filed motions for summary judgment on October 21, 2022. Officer Tucker raised a qualified-
immunity defense. The district court denied the defendants’ motions for summary judgment. In its
order, the district court declined to make any findings of law or fact, noting instead that the parties
had failed to include concise statements of material facts that supported their arguments for and
15
Nos. 23-5045/5047, Creger v. Tucker, et al.
against summary judgment. The court declined to find Officer Tucker and Smyrna were not clearly
entitled to judgment as a matter of law, instead resting its denial solely on the parties’ failure to
show which undisputed material facts entitled them to judgment. Although the court acknowledged
that denying qualified immunity could be seen as a “boon” to Creger’s claims, the court also
indicated that Creger could find himself “with a short-lived and pyrrhic victory” wherein his case
could “evaporate with the granting of a motion for judgment as a matter of law at the close of his
case-in-chief.” Order Den. Summ. J., R.98 at PageID 1465–66. Both Officer Tucker and the Town
of Smyrna timely appealed the court’s denial of summary judgment.
II. JURISDICTION
We may exercise appellate jurisdiction over both Officer Tucker’s and Smyrna’s appeals.
We have jurisdiction over the district court’s denial of qualified immunity to Officer Tucker
because, where we assume the plaintiff’s version of any disputed facts and such disputes are not
crucial to the defendants’ appeal, the district court’s denial of qualified immunity constitutes a
collateral order immediately appealable under 28 U.S.C. § 1291. See Coffey v. Carroll, 933 F.3d
577, 583 (6th Cir. 2019); Thompson v. Grida, 656 F.3d 365, 367 (6th Cir. 2011); Mitchell, 472
U.S. at 530; Gillispie v. Miami Township, 18 F.4th 909, 916–17 (6th Cir. 2021).
As a general matter, we have jurisdiction to hear interlocutory appeals where the district
court has denied a defendant government official’s assertion of qualified immunity. See Coffey,
933 F.3d at 583; Mitchell, 472 U.S. at 527. However, we must be careful to exercise jurisdiction
only over the appeal of questions of law, rather than questions of fact. At this “intermediate step,”
we lack jurisdiction to decide any genuine disagreements about material facts. Coffey, 933 F.3d at
583. Of course, this appeal is before us without the benefit of a factual recitation from the district
court, leaving this panel to assess whether genuine disputes of fact preclude summary judgment.
On appeal, the parties admittedly dispute certain facts relating to information that Officer
Tucker knew—or should have known—at the time he filed his arrest warrant affidavits. For
16
Nos. 23-5045/5047, Creger v. Tucker, et al.
instance, Creger disputes exactly what his daughters told Officer Tucker during their interview,
the level of distress Evon exhibited when she spoke to Officer Tucker, and whether Tucker
misstated facts when he alleged in the harassment affidavit that Evon told Creger to cease direct
contact. Creger further disputes that he had knowledge of the civil order of protection, which
Officer Tucker indicated in the second set of affidavits, and he disputes that Officer Tucker had
reason to believe Creger had found Evon’s address.
Regardless of these minor factual disputes, we may exercise jurisdiction here because we
accept the plaintiff’s characterization of any disputed facts. Sheets v. Mullins, 287 F.3d 581, 585
(6th Cir. 2002); see also Coffey, 933 F.3d at 583–84. That leaves us to decide only a series of
“strictly legal questions.” Coffey, 933 F.3d at 583 (quoting Phelps v. Coy, 286 F.3d 295, 298 (6th
Cir. 2002)). In this case, those questions are: Do the facts, as Creger alleges them, make out a
violation of Creger’s right against malicious prosecution? Specifically, do Creger’s malicious-
prosecution claims fail because no reasonable jury could find that Officer Tucker lacked probable
cause when he swore warrant affidavits for Creger’s two arrests? Relatedly, has Creger shown that
Officer Tucker deliberately or recklessly mischaracterized any facts that Tucker included in his
affidavits, resulting in Creger’s arrest and prosecution without probable cause? See Newman v.
Township of Hamburg, 773 F.3d 769, 771–72 (6th Cir. 2014). We may properly assess these legal
questions in an interlocutory appeal.
Further, as explained below, Creger has failed to show that Officer Tucker violated
Creger’s constitutional rights, so we may also exercise pendent jurisdiction over Creger’s § 1983
claim against the Town. See Shumate v. City of Adrian, 44 F.4th 427, 450 (6th Cir. 2022)
(“Although not appealable as a final decision under 28 U.S.C. § 1291, an appellate court can
exercise pendent appellate jurisdiction on a § 1983 claim alleging municipal liability where the
municipality’s motion for summary judgment is inextricably intertwined with the qualified
immunity analysis properly before the Court.” (quoting Lane v. City of LaFollette, 490 F.3d 410,
423 (6th Cir. 2007))); Mattox v. City of Forest Park, 183 F.3d 515, 523–24 (6th Cir. 1999) (“If the
17
Nos. 23-5045/5047, Creger v. Tucker, et al.
plaintiffs have failed to state a claim for violation of a constitutional right at all, then the
[municipality] cannot be held liable for violating that right any more than the individual defendants
can.”). Finding that Officer Tucker did not violate Creger’s constitutional rights necessarily
resolves Creger’s claim against Smyrna, see Shumate, 44 F.4th at 450, because the existence of a
constitutional violation is necessary to a municipal-liability claim under § 1983, see Monell v.
Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 692 (1978); Lane, 490 F.3d at 423. Because we
determine below that Creger did not commit a constitutional violation, we may exercise pendent
jurisdiction over Creger’s municipal-liability claim against Smyrna.
III. ANALYSIS
A. Standard of Review
Summary judgment must be granted where there is no genuine dispute of material fact and
the party moving is entitled to judgment as a matter of law. Newman, 773 F.3d at 771 (citing Fed.
R. Civ. P. 56(a)). We review de novo a district court’s rejection of a defendant officer’s qualified-
immunity defense at the summary judgment stage. Coffey, 933 F.3d at 584. The application of
qualified immunity is a question of law. Nelson v. City of Madison Heights, 845 F.3d 695, 699
(6th Cir. 2017). Other than in cases where the plaintiff’s characterization of facts blatantly
contradicts the record such that the characterization is “demonstrably false,” we may not resolve
on an interlocutory appeal any genuine disagreements about the facts. Coffey, 933 F.3d at 583
(quoting DiLuzio v. Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015)); see Scott v. Harris,
550 U.S. 372, 380 (2007). So, we construe all evidence in the light most favorable to the plaintiff.
Coffey, 933 F.3d at 584. To find the defendants were entitled to summary judgment, we must
determine that no reasonable juror could believe that Officer Tucker’s affidavits lacked probable
cause. See Peet v. City of Detroit, 502 F.3d 557, 563 (6th Cir. 2007).
Qualified immunity protects government officials from “liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
18
Nos. 23-5045/5047, Creger v. Tucker, et al.
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also
Mitchell, 472 U.S. at 517. The qualified-immunity defense balances competing values: On the one
hand, a damages remedy is necessary for vindicating individuals’ constitutional rights in the face
of official abuses. On the other hand, qualified immunity reduces the social costs inherent in
subjecting public officials to increased litigation, including expenses inherent to litigation, the
diversion of officials’ attention from public issues, and the deterrent effect the prospect of litigation
might have on “able citizens” who would otherwise seek public office. Harlow, 457 U.S. at 813–
14. Because qualified immunity is an “immunity from suit,” officer defendants possess an
entitlement not to stand trial or face other litigation burdens—an entitlement that is lost where a
case erroneously goes to trial. Mitchell, 472 U.S. at 526 (emphasis omitted). For this reason, we
require that courts address a defendant’s qualified-immunity defense “early in the proceeding.”
Coffey, 933 F.3d at 584.
We review two questions on the appeal of a denial of qualified immunity: (1) whether the
facts, as alleged, “make out a violation of a constitutional right,” and (2) whether the right at issue
was “clearly established” when the alleged violation occurred “such that a reasonable officer
would have known that his conduct violated it.” Martin v. City of Broadview Heights, 712 F.3d
951, 957 (6th Cir. 2013) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). We may answer
these questions in any order, and both must be answered in the affirmative for the litigation to
continue to trial. Id. If the officer can prevail on either, he must be granted qualified immunity.
Coffey, 933 F.3d at 584. Should the officer prevail on one question, we may decline to answer the
other. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
B. Officer Tucker Is Entitled to Summary Judgment on Creger’s Malicious-Prosecution
Claims.
The Sixth Circuit recognizes a constitutional claim—grounded in the Fourth
Amendment—against government officials whose “deliberate or reckless falsehoods result in
arrest and prosecution without probable cause.” See Newman, 773 F.3d at 772; see also Sykes v.
19
Nos. 23-5045/5047, Creger v. Tucker, et al.
Anderson, 625 F.3d 294, 312 (6th Cir. 2010); Coffey, 933 F.3d 577 at 591. This claim is
traditionally called a “malicious prosecution” claim, although it is perhaps better described as an
“unreasonable prosecutorial seizure,” as “malice is not an element of a § 1983 suit for malicious
prosecution.” Sykes, 625 F.3d at 310 (quoting Frantz v. Village of Bradford, 245 F.3d 869, 881
(6th Cir. 2001) (Gilman, J., dissenting)).
For his malicious-prosecution claims to overcome a qualified-immunity defense at the
summary judgment stage, Creger must at least show a genuine dispute over whether Officer Tucker
committed a constitutional violation. That entails showing a genuine dispute over (1) whether
Officer Tucker made, influenced, or somehow participated in the decision to prosecute; (2)
whether the criminal prosecution lacked probable cause; (3) whether the prosecution deprived
Creger of liberty, independent of the deprivation inherent in the initial seizure; and (4) whether the
criminal proceeding has been resolved in Creger’s favor. See Coffey, 933 F.3d at 590; Sykes, 625
F.3d at 308–09. Arguably, Creger succeeds on three of these elements. But the remaining
element—the probable-cause requirement—is his downfall.
First, Creger has likely shown that a jury could find Officer Tucker influenced or
participated in the decision to prosecute Creger for both sets of criminal charges. Our precedent
tends to consider this factor in relation to the probable cause element: in the past, we have
considered whether the plaintiff has sufficiently alleged facts leading to a “reasonable inference
that either of the defendant officers ‘influenced or participated’ in the prosecutor’s decision to
continue the prosecution after he or she had knowledge of facts that would have led any reasonable
officer to conclude that probable cause” did not exist. Johnson v. Moseley, 790 F.3d 649, 654 (6th
Cir. 2015). If we assume—only for the purpose of determining this first element—that Officer
Tucker deliberately or recklessly acted without probable cause, then our precedent clearly
establishes that the “influencing” element is satisfied where an officer knowingly or recklessly
makes false statements to a judge or prosecutor that result in a warrant or prosecution. Vakilian v.
Shaw, 335 F.3d 509, 517 (6th Cir. 2003); Sykes, 625 F.3d at 314–15; Manuel v. City of Joliet, 580
20
Nos. 23-5045/5047, Creger v. Tucker, et al.
U.S. 357, 367 (2017) (describing how pretrial detention can violate the Fourth Amendment when
“a judge’s probable-cause determination is predicated solely on a police officer’s false
statements”); see also Newman, 773 F.3d at 772 (assuming the plaintiff needed to show an officer
deliberately or recklessly mischaracterized a witness statement in a warrant affidavit before finding
the officer had not in fact done so). Assuming the affidavits contained false or misleading
statements, the undisputed fact that Officer Tucker swore the affidavits and submitted them to a
judicial commissioner satisfies the first malicious-prosecution element.
Second, the parties do not dispute on appeal that Creger has shown a jury could find he
suffered an independent deprivation of liberty. The “two sets of criminal charges each inflicted
arrest, incarceration, and pretrial bond conditions.” Creger I Appellee’s Br. 53. The incarceration
and pretrial bond conditions, at least, constitute deprivations of liberty under this Court’s and the
Supreme Court’s Fourth Amendment jurisprudence. See Coffey, 933 F.3d at 590; Sykes, 625 F.3d
at 308–09 (citing Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007)); Manuel, 580 U.S. at 366.
Third, the parties similarly do not dispute on appeal that Creger has shown a jury could
find the criminal proceeding has been resolved in his favor, at least under the standard that
currently governs malicious-prosecution claims. Creger was not convicted of any of the charges
filed. All that Creger must show, per the Supreme Court, is that his criminal prosecution ended
without a conviction. Thompson v. Clark, 596 U.S. 36, 49 (2022). And the Thompson rule did not
need to be “clearly established” at the time of the dispute for its rule to apply because the favorable-
termination element serves no independent deterrent effect on police officers’ conduct. See Caskey
v. Fenton, No. 22-3100, 2022 WL 16964963, at *10–11 (6th Cir. Nov. 16, 2022); see also Coello
v. DiLeo, 43 F.4th 346, 354 (3d Cir. 2022); Smith v. City of Chicago, No. 19-2725, 2022 WL
2752603, at *1 (7th Cir. July 14, 2022). Officer Tucker’s involvement had ceased by the time the
charges were dismissed, so the standard that applies to the favorable-termination element could
not have deterred his conduct. Creger has shown a reasonable jury could find his proceedings were
favorably terminated.
21
Nos. 23-5045/5047, Creger v. Tucker, et al.
That leaves the probable cause determination. No reasonable jury could find that Officer
Tucker’s statements in each warrant affidavit he filled out in support of the charges he filed against
Creger lacked probable cause. To show that probable cause justified the warrant statements,
Officer Tucker must show that the information he possessed when he submitted the affidavits
constituted “reasonable grounds for belief, supported by less than prima facie proof but more than
mere suspicion,” that the offenses had occurred. United States v. McClain, 444 F.3d 556, 562 (6th
Cir. 2005) (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc)). Probable
cause—a flexible standard—requires only that the officer show there existed a “probability or
substantial chance of criminal activity, not an actual showing of such activity.” Id. at 562–63
(quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). We generally find probable cause exists
where officers have “reasonably trustworthy information” to indicate to a “prudent man” that the
plaintiff “had committed or was committing an offense.” Ouza v. City of Dearborn Heights, 969
F.3d 265, 279 (6th Cir. 2020) (quoting Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000)).
Officers must consider the totality of circumstances known to them and may not rely only on
evidence of guilt while ignoring evidence of innocence. Id.
Importantly, for probable-cause determinations, the Sixth Circuit has recognized that
witness statements to police are “generally sufficient to establish probable cause without further
corroboration” because witnesses face significant legal consequences for lying to police officers—
consequences that “tend to ensure reliability.” Lester v. Roberts, 986 F.3d 599, 609 (6th Cir. 2021)
(quoting United States v. Hodge, 714 F.3d 380, 385 (6th Cir. 2013)). We caveat, though, that
uncorroborated statements might not suffice where there is an “apparent reason” to believe the
witness was lying or had not accurately described the event in question. Id. (quoting United States
v. Harness, 453 F.3d 752, 754 (6th Cir. 2006)); Peet, 502 F.3d at 564.
In Lester, multiple other witnesses corroborated the lead witness’s implication of a criminal
defendant and her photo array testimony identifying him as an accomplice to a murder. 986 F.3d
at 610. And in Peet, the witness statement—about the identity of two men committing a robbery—
22
Nos. 23-5045/5047, Creger v. Tucker, et al.
sufficed to support probable cause because the witness’s reliability was supported by the sole fact
that the witness knew a robber’s pager number, which he had given to her in a restaurant before
committing the robbery. 502 F.3d at 564. By these standards, no reasonable jury could have found
that the statements that Officer Creger made in the six warrants here lacked probable cause.
Further, because no constitutional violation occurred, we decline to answer whether Creger’s right
against malicious prosecution in this context was clearly established.
1. Because Officer Tucker Had Probable Cause for the May 22, 2019, Warrant
Affidavits, He Did Not Violate Creger’s Constitutional Rights.
Creger argues that certain factual disputes preclude finding that Officer Tucker possessed
probable cause to write and submit harassment and stalking affidavits on May 22. Even construing
these disputes in his favor, though, Creger cannot show that Officer Tucker lacked probable cause
to submit either the stalking or harassment affidavit to a Smyrna judicial commissioner.
Under Tennessee law, harassment occurs where a person (1) intentionally communicates
(2) with another person (3) without lawful purpose (4) with the intent that the communication
annoy, offend, alarm, or frighten the recipient, and (5) the communication actually annoys,
offends, alarms, or frightens the recipient. Tenn. Code Ann. § 39-17-308(a)(2). Creger claims
Officer Tucker had no probable cause to make the assertion in the harassment affidavit that Evon
had told Creger to “cease direct contact” when she saw his car across the intersection at 3:30 PM
on May 22. May 22 Harassment Aff., R.84-7 at PageID 654. Creger further argues Officer Tucker
ignored exculpatory evidence: that Creger had a lawful purpose for contacting Evon, which Creger
himself characterizes as “complaining about being deprived of his parenting time.” Creger I
Appellee’s Br. 45.
Given the evidence available to Officer Tucker—which, even taking Creger’s view of the
facts, included (1) Evon’s phone call to Smyrna Police Dispatch, (2) direct evidence of the text
messages that Evon and Creger exchanged on May 22, (3) a conversation that Office Tucker had
with Evon and her daughters (ignoring the content of that conversation), (4) Evon’s written witness
23
Nos. 23-5045/5047, Creger v. Tucker, et al.
statement, and (5) a phone conversation between Creger and Officer Tucker—he clearly had
probable cause to warrant his belief that harassment had occurred. Evon told dispatch that Creger
had been following her car in a “threatening” manner. Dispatch Recording at 00:35–01:05. She
further indicated that the cadence of his text messages was “eerie” and that she had avoided giving
Creger her current address. Id. at 03:15–03:40; 04:50–05:06. Then, both parties admit, Evon
showed Officer Tucker her texts with Creger. Tucker, in his affidavit, included verbatim the three
texts that formed the basis for the harassment charge, accurately described the fact that the two
were going through a divorce, and correctly indicated that Evon had not yet told Creger her new
home address.
Perhaps the most important corroboration of Evon’s statements, though, comes from
Creger. In his phone call with Officer Tucker, Creger never denies Evon’s claim that he had been
following her. Creger also confirms that he had asked Evon for her address, arguing that he had a
right to know it because his daughters were living with Evon. This call provides more than
sufficient support for Officer Tucker’s determination that Evon’s witness statement was
trustworthy, especially considering that we already give firsthand observations an independent
presumption of reliability. See Peet, 502 F.3d at 564. Evon informed dispatch that she construed
Creger’s actions as threatening, showed Officer Tucker a text that told Creger to contact her
attorney, and called his texting habits eerie—even before Officer Tucker confirmed with Creger
that Creger had actually followed Evon in his car. Nothing in the harassment warrant affidavit
misrepresents these basic facts—including Officer Tucker’s reasonable inference that Evon’s text
telling Creger to contact her attorney constituted a request to stop contacting her. Indeed, the fact
that Officer Tucker included the relevant texts verbatim in the warrant buttresses the conclusion
that Tucker’s statements were not misleading to the judicial commissioner. Inferring that Evon
asked Creger to cease contact is not a misleading interpretation of a statement telling another
person to contact an attorney. Further, including the text message in the affidavit emphasizes the
fact that the statement was an inference—not a misleading statement of material fact. Finally, by
24
Nos. 23-5045/5047, Creger v. Tucker, et al.
including Creger’s text claiming that Evon was keeping him from their daughters, Officer Tucker
indicated that he had considered whether Creger had a “lawful purpose” for contacting Evon—and
that “complaining” (in Creger’s words) did not suffice.
Similar analysis applies to Officer Tucker’s May 22 stalking affidavit. Tennessee’s stalking
provision criminalizes any “willful course of conduct involving repeated or continuing harassment
of another individual that would cause a reasonable person to feel terrorized, frightened,
intimidated, threatened, harassed, or molested, and that actually causes the victim” to feel any of
those emotions. Tenn. Code Ann. § 39-17-315(a)(4). A course of conduct, under the stalking
provision, means a “pattern of conduct composed of a series of two (2) or more separate,
noncontinuous acts evidencing a continuity of purpose.” Id. § 315(a)(1). And harassment means
any conduct “directed toward a victim” that includes—but is not limited to—“repeated or
continuing unconsented contact that would cause a reasonable person to suffer emotional distress”
and that actually causes such distress. Id. § 315(a)(3). Harassment excludes “constitutionally
protected activity or conduct that serves a legitimate purpose.” Id.
As above, the multiple pieces of evidence available to Officer Tucker before he submitted
the stalking affidavit provide sufficiently trustworthy information that Creger had engaged in a
course of conduct (texting multiple times and then following Evon in her car) that evidenced a
continuity of purpose (obtaining Evon’s and their daughters’ address), would cause a reasonable
person to suffer emotional distress (given Evon’s description of Creger’s “history” of domestic
violence), and actually caused emotional distress (indicated by Evon’s description of Creger’s
conduct as “threatening” and his failure to text her as “eerie”).
Creger characterizes the events of May 22 as a single, continuous incident of five to ten
minutes in which Creger followed Evon’s car and sent her the text “No deal!” followed by a
complaint about not seeing his daughters and a threat that “the judge” would not like her actions.
Creger I Appellee’s Br. 40. He argues that Officer Tucker lacked probable cause to assert that this
conduct constituted a “course of conduct” under Tennessee’s stalking prohibition. Creger fails to
25
Nos. 23-5045/5047, Creger v. Tucker, et al.
acknowledge that the warrant affidavit itself describes Creger’s 11:44 AM text asking for Evon’s
address, Creger’s 2:24 PM text saying her address was “easy to find… I’m entitled to know where
my [daughters] are sleeping,” and then Creger’s pursuit of Evon’s car at roughly 3:30 PM and the
set of three texts he sent thereafter. May 22 Stalking Aff., R.84-8 at PageID 655. On appeal, Creger
argues that a “single continuous incident of some 5–10 minutes in duration” cannot constitute a
course of conduct under Tennessee law. Creger I Appellee’s Br. 40. Creger relies on State v. Vigil,
65 S.W.3d 26 (Tenn. Crim. App. 2001), for the proposition that two acts on the same day cannot
constitute two separate occasions of harassment, as is required by the stalking statute.
But Creger’s reliance on Vigil is misplaced. Beyond the error Creger makes in assuming
Officer Tucker needed sufficient evidence to sustain a conviction—the relevant standard in Vigil—
the case’s facts are readily distinguishable. There, the Tennessee Court of Criminal Appeals found
that driving past a building, circling the block, and immediately driving past the same building
could not constitute a “separate” set of occasions under the stalking statue. Vigil, 65 S.W.3d at 34.
Here, each of Creger’s discrete acts—texting his wife in the late morning, texting again in the mid-
afternoon, and then later following his wife’s car—is separated by roughly an hour (or more) of
non-contact. The acts Officer Tucker cited in the stalking affidavit were not only “5–10 minutes”
of “continuous” conduct—the texts occurred over multiple hours, and following Evon’s car
constitutes a fundamentally different form of conduct than texting. At the very least, Officer
Tucker had sufficient trustworthy information to suggest at the investigatory stage that Creger had
engaged in a course of conduct aimed at obtaining Evon’s home address. Of course, at this stage,
we need not decide whether Creger did in fact commit stalking. We only need to decide if there
was enough for Officer Tucker to have probable cause to issue the arrest warrant. This standard
makes all the difference here.
Creger additionally challenges Officer Tucker’s assertion that Evon suffered severe enough
emotional distress to qualify under Tennessee’s stalking provision. Creger points us to State v.
Flowers, 512 S.W.3d 161 (Tenn. 2016), in which the Tennessee Supreme Court reversed a
26
Nos. 23-5045/5047, Creger v. Tucker, et al.
conviction for stalking on evidence-sufficiency grounds because it found that the victim did not
personally testify to feeling significant mental suffering or distress, as is required to establish that
the victim actually felt such distress. 512 S.W.3d at 166. Indeed, although we note Evon told
dispatch that Creger’s driving was “threatening” and that his texting habits were “eerie,” she never
in her phone call or written statement uses words like “fear” or “distress.” See Dispatch Recording;
May 22 Evon Creger Witness Statement, R.84-4 at PageID 646–47. But this argument misses the
mark. Creger again overlooks that we need not determine whether Creger actually committed the
crime of stalking. We need only ask whether Officer Tucker knew of evidence that would lead a
reasonable officer to believe Creger had committed the offense. See Peet, 502 F.3d at 563. Evon’s
direct testimony would be prima facie proof of her mental state. But we do not require prima facie
proof to establish probable cause. McClain, 444 F.3d at 562–63.
Peet emphasizes the point. There, the witness’s knowledge of an independent fact—in
conjunction with the presumption of reliability we afford to eyewitness testimony made to police
officers—sufficed to establish probable cause to rely on the witness’s testimony. 502 F.3d at 564.
Here, even without relying on the content of the interview Officer Tucker conducted with Evon
and her daughters, Officer Tucker possessed sufficiently trustworthy evidence to establish
probable cause that Evon was distressed. Evon’s phone call to dispatch—which included her
description of Creger’s domestic abuse history, her statement that Creger’s driving was
threatening, and her description of his “eerie” set of texts—arguably suffices on its own. Add in
that Evon drove directly to the police station, that she stated to Tucker that her attorney told her to
pick up her daughters, and that Officer Tucker later independently verified the May 22 events with
Creger (establishing Evon’s reliability), and the sum is evidence that “amply established probable
cause” for Creger’s arrest and prosecution for stalking. See Newman, 773 F.3d at 772.
Because Officer Tucker had sufficient probable cause to make each statement in that
warrant affidavits that he filed on May 22, Creger has failed to show any “constitutional violation
27
Nos. 23-5045/5047, Creger v. Tucker, et al.
at all,” and his malicious-prosecution claim must be dismissed. See Pearson, 555 U.S. at 236.
Officer Tucker has qualified immunity against Creger’s first malicious-prosecution claim.
2. Because Officer Tucker Had Probable Cause for the June 6, 2019, Warrant
Affidavits, He Did Not Violate Creger’s Constitutional Rights.
In his second malicious-prosecution claim, Creger again argues that Officer Tucker lacked
probable cause to write and submit one criminal contempt and three aggravated stalking affidavits
on June 6, 2019. As above, though, even construing factual disputes in his favor, Creger cannot
show that Officer Tucker lacked probable cause to submit any of the affidavits to a judicial
commissioner.
In Tennessee, aggravated stalking (under the section Officer Tucker charged) occurs where
a person commits stalking—the same offense Officer Tucker alleged on May 22—with the
additional element that, at “the time of the offense,” the defendant “was prohibited from making
contact with the victim under a restraining order or injunction for protection, an order of protection,
or any other court-imposed prohibition of conduct toward the victim,” and the person “knowingly
violates” the court order. Tenn. Code Ann. § 39-17-315(c)(1)(E). Creger claims Officer Tucker
had no probable cause to assert in the aggravated stalking warrants that Creger found Evon’s
address and traveled to her house such that Creger’s violation of his civil protection order or bond
conditions was knowing under the aggravated stalking statute. Creger also argues, as he did for
the May 22 stalking charge, that Officer Tucker lacked probable cause indicating Evon felt
sufficient emotional distress.
Like on May 22, Officer Tucker possessed reasonably trustworthy information that
Creger’s presence on Easy Goer Way on June 2 sufficiently distressed Evon and her daughters
under Tennessee’s stalking statute to justify submitting aggravated stalking warrant affidavits on
June 6. To start, Creger mistakenly argues that Officer Tucker was required to establish probable
cause that Evon and her daughters were in reasonable fear of being assaulted and “suffering bodily
injury or death.” Creger I Appellee’s Br. 51. Granted, the boilerplate language included in each
28
Nos. 23-5045/5047, Creger v. Tucker, et al.
stalking affidavit (including the May 22 one) that Officer Tucker submitted includes that
heightened fear requirement. But Officer Tucker filled in the probable cause section and modified
the boilerplate language with sufficient information about Creger’s court-imposed conditions to
make clear that he alleged violations of section 315(c)(1)(E). Violation of the relevant section
requires only that the suspect knowingly violated a court order prohibiting conduct toward a
victim—which Tucker properly alleged in the aggravated stalking affidavits—and contains no
heightened emotional distress requirement.
Creger again conflates the need to show probable cause that Evon and her daughters
experienced emotional distress with the requirement to prove emotional distress to sustain a
conviction for aggravated stalking. In Tennessee, lack of direct testimony explaining Evon’s and
her daughters’ emotional states might, in a hypothetical criminal trial, be insufficient evidence for
a conviction. See Flowers, 512 S.W. at 166. But at the preliminary stages of an investigation, where
we require only reasonable grounds for belief, and not prima facie proof, see McClain, 444 F.3d
at 562, the evidence available to Officer Tucker sufficed. Evon called Smyrna Police immediately
after she found out Creger had been to her neighborhood. She and her daughters showed Officer
Tucker the texts that K.C. had received from Creger—and those texts showed Tucker that K.C.
had not responded. The first sentence Evon wrote in her witness statement indicated that she had
an “order of protection in place.” June 6 Evon Creger Witness Statement, R.84-24 at PageID 728.
Officer Tucker knew—from his earlier investigation—that Evon and Creger were going through
a divorce and that Evon had previously told him Creger had been arrested for domestic assault in
Wisconsin while she was eight months pregnant. As with the May 22 stalking charge, this evidence
more than satisfies our requirements to establish probable cause that Evon and her daughters were
sufficiently distressed by Creger’s conduct to justify filing aggravated stalking charges on June 6.
See Newman, 773 F.3d at 772; Peet, 502 F.3d at 564.
Creger’s strongest challenge to Officer Tucker’s June 6 stalking affidavits is that Tucker
lacked probable cause that Creger knew he was violating his civil order of protection. Creger
29
Nos. 23-5045/5047, Creger v. Tucker, et al.
develops this argument in two ways: he first contends that Tucker had no reason to think Creger
actually knew Evon and his daughters lived on Easy Goer Way. And Creger continues by claiming
that Officer Tucker should have known that sufficient circumstantial evidence suggested Creger
was in the neighborhood for an independent reason—to attend an open house. As described above,
Creger contends his presence at the open house on the same street where his estranged wife and
daughters lived was a coincidence. And, because of the factual posture of this appeal, we construe
his assertions—that he left the neighborhood immediately upon seeing his daughter, that he had
learned about the open house independently, that he believed the Smyrna Municipal Court judge
had authorized him to text his daughters, and that he did not learn of the civil order of protection
until June 3—in his favor. But again, the fact that the state may not have been able to prove Creger
knew he had violated his order of protection beyond a reasonable doubt does not mean Officer
Tucker lacked trustworthy information to support a probable cause determination. To the contrary,
Tucker possessed more than enough information to suggest a substantial chance that Creger had
violated Tennessee’s aggravated stalking provision.
Consider the facts from Officer Tucker’s perspective. Even crediting Creger’s
characterization of the events at issue in this appeal, by June 6, Officer Tucker knew that Evon had
disclosed to the Smyrna Police Department a “history” of domestic abuse between the two
partners. Officer Tucker knew that Evon Creger had obtained a civil order of protection on May
22. Further, on June 6, Officer Tucker knew Creger was aware of both his bond conditions and the
civil protection order by June 3, which is when Creger showed up at the Smyrna Police Department
to speak with Lieutenant Cutshaw about his criminal charges and the ex parte order. Beyond
disputing Officer Tucker’s intentions in signing the order and his knowledge about whether
Creger’s divorce attorney knew about the civil protection order, Creger certainly does not indicate
he told anyone at Smyrna Police that he had just that day become aware of the civil order. Given
the additional evidence Officer Tucker gathered on June 6, he had sufficiently reliable information
that Creger knew about the civil protection order on or around June 2 (even if Creger didn’t
30
Nos. 23-5045/5047, Creger v. Tucker, et al.
actually know until June 3) to allege in the aggravated stalking warrants that Creger knowingly
violated the order.
Creger does not dispute that on June 6, Officer Tucker gathered clear evidence that Creger
had driven to an open house on Easy Goer Way on June 2. Creger readily admits that he did, in
fact, drive to Easy Goer Way. Standing alone, considering his pending criminal charges, this
coincidence arguably suffices to justify Officer Tucker’s circumstantial inference that Creger had
found Evon’s address and attempted to stalk his wife and daughters. But we need not rest on this
alone, because Officer Tucker gathered more evidence. Creger argues—based largely on later
depositions—that Officer Tucker should have weighed exculpatory evidence that Creger saw signs
in the neighborhood advertising the open house and legitimately sought to attend it. But the
contemporaneous evidence Officer Tucker gathered—in particular, the witness statement from
Lindsey Inghram—provided independent corroboration that Creger was illicitly stalking his
family. According to Lindsey’s recollection to Officer Tucker at the time, Creger showed “little
interest” in the property. L. Inghram Witness Statement, R.84-24 at PageID 729. She specifically
told Officer Tucker that she found his presence at the open house “odd” because, she stated, there
were not public signs in the neighborhood about the open house. Id. She gave Officer Tucker
additional reasons to think that Creger was not in the area legitimately: he had no real estate agent
and no timeline to move in, indicating to Lindsey that he wasn’t truly interested in purchasing a
house. Further corroboration of suspicious behavior came from Lindsey’s husband, who described
how Creger drove toward Evon’s house, “saw” his daughter, stopped to back up in a nearby
driveway, and “hauled” back out of the neighborhood in the opposite direction. G. Inghram
Witness Statement, R.84-24 at PageID 730. Standing alone, Grant’s statement might suggest
Creger did not intend to be near his wife and daughters. But, given all that Officer Tucker knew
about Creger’s contentious relationship, it might also reasonably suggest a desire merely to avoid
being seen (and thus found out) by his wife and daughters. Given the totality of the circumstances
that Officer Tucker knew by this point, the additional evidence he gathered from Lindsey and
31
Nos. 23-5045/5047, Creger v. Tucker, et al.
Grant more than established probable cause to believe Creger had stalked his family in violation
of court-imposed conditions.
Similarly, Officer Tucker had probable cause to believe Creger violated his bond
conditions in violation of Tennessee’s criminal contempt statute. See Tenn. Code Ann. § 40-11-
150(i)(1) (“A person who violates a condition of release imposed pursuant to this section shall be
subject to immediate arrest . . . .”). By June 6, Officer Tucker had evidence that Creger (1) knew
before June 2 that his bond conditions required him to stay away from Evon and (2) had traveled
to Easy Goer Way, the same street where Evon lived, while she and her daughters were present on
their property. Although Creger challenges his actual knowledge of Evon’s location—arguing that
his violation was not “willful” under Tennessee law, see Mawn v. Tarquinio, No. M2019-00933,
2020 WL 1491368, at *3 (Tenn. Ct. App. 2020)—Creger again points us only to authority
establishing that the state must prove the willful nature of his violation in order to sustain a
conviction. At the probable-cause stage, these two facts constituted “reasonably trustworthy”
evidence “sufficient” for Officer Tucker to conclude that Creger had committed criminal contempt.
See Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000) (quoting Beck v. Ohio, 379 U.S.
89, 91 (1964)).
Because Officer Tucker had probable cause to make each statement in the affidavits that
he filed on June 6, Creger has made out no “constitutional violation at all,” and his malicious-
prosecution claim fails. See Pearson, 555 U.S. at 236. As a result, as with Creger’s first claim,
Officer Tucker has qualified immunity against Creger’s second malicious-prosecution claim.
C. Because Officer Tucker Committed No Constitutional Violation, the Town of Smyrna
Is Entitled to Summary Judgment.
Because Officer Tucker did not recklessly or deliberately file warrant affidavits that caused
Creger’s arrest without probable cause, we reverse the district court’s denial of summary judgment
for the Town of Smyrna. Creger’s suit against Smyrna rests on the form of municipal liability for
constitutional violations established in Monell v. Department of Social Services of City of New
32
Nos. 23-5045/5047, Creger v. Tucker, et al.
York, which permits suits against municipalities that are, by virtue of an existing municipal “policy
or custom,” responsible for the constitutional violation inflicted by their employees or agents. 436
U.S. 658, 694 (1978). Smyrna correctly argues—and Creger does not dispute—that, where no
constitutional violation to the victim has occurred, a claim for municipal liability cannot survive.
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); White v. City of Detroit, 38
F.4th 495, 500–01 (6th Cir. 2022). Because Creger did not suffer from a constitutional violation,
we reverse the district court’s denial of summary judgment to Smyrna under the doctrine of
pendent jurisdiction. See Mattox, 183 F.3d at 523–24; Shumate, 44 F.4th at 450.
D. Sanctions Are Not Warranted.
Creger requests sanctions against Officer Tucker, the Town, and their counsel for pressing
this appeal. We decline this request. Regardless of the outcome here, Officer Tucker was entitled
to appeal a denial of qualified immunity on an interlocutory basis. See Mitchell, 472 U.S. at 524–
25. And, because we have found Officer Tucker committed no constitutional violation, his and
Smyrna’s appeals are meritorious. Finally, both parties’ litigation tactics before the district court
have unnecessarily protracted this litigation. As such, sanctions against Officer Tucker are
unwarranted.
IV. CONCLUSION
We REVERSE the district court’s denial of the defendants’ motions for summary
judgment on the plaintiff’s malicious-prosecution claims and REMAND for entry of an order
dismissing the claims against defendants Andrew Tucker and the Town of Smyrna.
33