Mary Pritchard v. Hamilton Township Board of Trustees ( 2011 )


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  •                            File Name: 11a0355n.06
    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    No. 09-4594                                      FILED
    May 25, 2011
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk
    MARY PRITCHARD; TED PRITCHARD;                             )
    ZACHARY CHRISTMAN; KEVIN CLARK;                            )
    TERRY CHRISTMAN,                                           )
    )        ON APPEAL FROM THE
    Plaintiffs-Appellees,                               )        UNITED STATES DISTRICT
    )        COURT FOR THE
    v.                                                         )        SOUTHERN DISTRICT OF
    )        OHIO
    HAMILTON           TOWNSHIP           BOARD         OF     )
    TRUSTEES,                                                  )                           OPINION
    )
    Defendant,                                          )
    )
    and                                                        )
    )
    PHIL JOHNSON, Lieutenant; JEFF BRALEY,                     )
    Lieutenant; ROGER GILBERT, Officer; GAIL                   )
    GILBERT; FRANK RICHARDSON, Chief,                          )
    )
    Defendants-Appellants.
    BEFORE:        KEITH, McKEAGUE, KETHLEDGE, Circuit Judges.
    McKeague, Circuit Judge. This lawsuit stems from the Defendants’ actions in planning
    and conducting an operation to investigate possible underage consumption at a father and son’s
    birthday party. The operation culminated when police officers arrived at the party around midnight
    and made two arrests. Following the incident, the Plaintiffs brought this lawsuit alleging, inter alia,
    that the Defendants conducted an unlawful search of the property, and made unlawful arrests, in
    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    violation of federal and state law. The Defendants sought qualified immunity as to the federal
    claims, and statutory immunity as to the state-law claims. The case comes to us on interlocutory
    appeal, so we only address the district court’s denial of qualified and statutory immunity as to the
    Defendants. Where the Defendants’ legal arguments as to qualified immunity rely on disputed facts,
    we are without jurisdiction to hear the appeal. As to all other grounds for appeal, we AFFIRM the
    judgment of the district court.
    I. BACKGROUND
    A. Factual History
    Plaintiffs Mary Pritchard and Edward Pritchard (collectively “Pritchards”) are married and
    own a home in Hamilton Township, Ohio. Plaintiffs Terry Christman, Zachary Christman (son of
    Terry), and Kevin Clark all attended a party at the Pritchard home that was the subject of the police
    action underlying this lawsuit. Defendants include four police officers who were employed by the
    Hamilton Township Police Department at the time of this incident: Chief Frank Richardson (“Chief
    Richardson), Lieutenant Phil Johnson (“Lt. Johnson”), Lieutenant Jeff Braley (“Lt. Braley”), and
    Officer Roger Gilbert (“Officer Gilbert”). Officer Gilbert now works for another law enforcement
    agency, and Chief Richardson is deceased. Officer Gilbert’s wife Gail Gilbert is a defendant as well.
    Plaintiffs have also sued the Hamilton Township Board of Trustees, but the Board is not part of the
    instant appeal.
    On August 8, 2007, Lt. Braley held a meeting with concerned citizens at the Hamilton
    Township Police administrative building. The meeting, which included Lt. Braley’s former police
    academy commander, was held to discuss underage drinking in the Township, an issue that
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    concerned the citizens because a son of one of two of the citizens had recently been involved in an
    automobile accident that involved alcohol. The concerned citizens suspected that their son drank
    alcohol at the Pritchards’ home on the night of the accident. They also explained that on a prior
    occasion they drove by the Pritchard home and saw “kids laying in the front yard.” The meeting
    ended with the citizens informing Lt. Braley that the Pritchards planned to host a party on August
    10, and that they suspected that there would be underage drinking at the party. Lt. Braley did nothing
    further to corroborate this information.
    The following day, Lt. Braley met with Chief Richardson and Lt. Johnson to discuss the
    Pritchard party. Other than the details relayed by Lt. Braley, none of the officers had any reason to
    suspect underage drinking at the Pritchard home.1 The next day the three officers developed a plan
    for monitoring the party. Because the party was going to occur after their regular duty hours, the
    officers decided—and were approved—to work additional hours that evening. Lt. Johnson also
    ensured that Ohio Liquor Control agents would be available until midnight—when they planned to
    end the operation—to provide support.
    At approximately 8:00 p.m. on August 10, two Liquor Control agents reported for duty at the
    police station. At approximately 9:00 p.m., Lt. Braley began driving past the Pritchard residence
    every 30 minutes in an unmarked police car. Lt. Braley did not see anything unusual for most of the
    evening, reporting back that everything was “going okay,” and that “nothing was happening.” Lt.
    Braley did not report any observations that would create a suspicion of underage drinking, or any
    1
    There is an inconsistency in the record about what Lt. Braley actually reported at the
    meeting. Lt. Johnson testified that Lt. Braley’s information came from local school personnel.
    However, Lt. Braley testified that he only relayed information citizens.
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    other unlawful activity. Lt. Braley alleges that this changed at around 11:45 p.m.— during what was
    planned to be Lt. Braley’s final pass—when Lt. Braley claims that he saw four individuals in the side
    yard, and that one of the individuals appeared to be intoxicated and was yelling very loudly.
    However, because it was so dark, Lt. Braley could not describe any of the individuals except to say
    that the voice he heard was from a male. Lt. Braley could also not tell if the individuals were
    underage. Lt. Braley reported these observations to Lt. Johnson, but did not investigate any further
    because it was against departmental policy for a plain-clothes officer to go onto the property in a
    non-emergency situation. Lt. Braley returned to the police station. By contrast, the Plaintiffs
    maintain that the party was calm and relatively quiet at all times.
    Back at the police station, Lt. Johnson, Chief Richardson and Officer Gilbert were in their
    respective police cruisers, parked side by side, with Chief Richardson’s driver-side window
    positioned next to Lt. Johnson’s driver-side window, and Officer Gilbert’s driver-side window
    positioned next to Lt. Johnson’s passenger-side window. There were no complaints from neighbors
    or other private citizens about the party that night. However, at some point before Lt. Braley’s last
    report, Officer Gilbert recalls that Lt. Johnson and another officer, possibly Lt. Braley, discussed the
    prospect of having Lt. Johnson’s wife place a fictitious noise complaint. Then later, after Lt.
    Braley’s final report, Lt. Johnson instructed Officer Gilbert to call his wife, Gail Gilbert, and to ask
    her to place an anonymous noise complaint with the county dispatcher regarding the Pritchard
    residence.2 The Gilberts lived in the neighboring county, and other than what Officer Gilbert told
    2
    Because Chief Richardson was closer to Lt. Johnson during this conversation, Officer
    Gilbert testified that he believes that Chief Richardson heard all of this. Chief Richardson, however,
    denied being present during this conversation and testified that he did not find out about the
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    her, Gail Gilbert did not have first-hand knowledge about the party. Lt. Johnson then instructed
    Officer Gilbert, and perhaps another officer, to head toward the party, in anticipation of the
    dispatcher issuing a call over the radio. Shortly thereafter, the dispatcher put out a radio call
    requesting officers to respond to the noise complaint.
    The Pritchards were hosting a party to celebrate the birthdays of Ted Pritchard and his son
    Stephen. Officer Gilbert was the first officer on the scene and pulled his police car into the
    driveway. At the time, Mary Pritchard recalls that the party was not noisy and that no one was
    misbehaving. She met Officer Gilbert at the front of the house and identified herself as the
    homeowner. Officer Gilbert’s next act is highly disputed by the parties. Mary Pritchard maintains
    that Officer Gilbert brushed past her and went immediately to her backyard, at which point a few
    people in the backyard took off running.3 Officer Gilbert then immediately pursued the individuals
    through the backyard, and at about the same time she recalls approximately 22 police officers
    “storming” around both sides of her house. Officer Gilbert maintains instead that while he was
    speaking with Mary Pritchard he heard someone yell “run” and saw multiple subject take off. He
    fraudulent noise complaint until a week later.
    Lt. Johnson testified that he wanted the noise complaint to be placed because he was
    concerned that there was too much radio traffic. He wanted to make sure that officers were ready
    to provide back-up at the Pritchard residence. Chief Richardson testified that any of the officers
    could have requested the dispatcher to have officers respond, and that having the anonymous call
    placed probably delayed the radio dispatch. Lt. Johnson was ultimately reprimanded for this aspect
    of the incident.
    3
    Mary Pritchard claims she heard one person yell “run, Forrest,” which she understood to be
    a joke from the movie Forrest Gump, and then the individuals ran.
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    further maintains that he entered the backyard only to pursue the subjects who where “running from
    a [noise] complaint.”
    During the pursuit, Officer Gilbert says that he made a radio call to alert other officers that
    he was in a foot pursuit with one of the suspects. The individual that Officer Gilbert pursued turned
    out to be Zac Christman. Christman recalls running after seeing 10 police officers “swarming” onto
    the property through the side yard. He also recalls hearing officers yell “tase him, tase his fucking
    ass” during the chase. Christman estimates that he ran for about 30 seconds before he fell and was
    apprehended by Officer Gilbert. Lt. Johnson then took Christman to one of the police cruisers,
    where he remained for approximately 30 minutes. Christman’s father Terry Christman observed the
    events, identified himself, and sought to discuss the matter with police officers. Terry Christman
    reports that officers refused to talk with him and threatened to arrest him if he persisted. The officers
    did not administer a breathalyser or field sobriety test, but Zac Christman was underage, and he
    admitted to consuming alcohol. Lt. Johnson told Officer Gilbert to charge Zac Christman with
    underage drinking and disorderly conduct. Officer Gilbert reviewed the citations before signing
    them. Christman was then released to his father. Christman hired an attorney and had one court
    appearance, but because Ohio law permits an underage individual to drink with a parent’s permission
    on private property, the charges were eventually dismissed.
    Lt. Braley arrived at the scene and spoke with Mary Pritchard in her side yard. The
    Pritchards recall Lt. Braley threatening to the “take [her] fucking house” because she supplied
    alcohol to minors. Mary Pritchard also recalls Lt. Braley threatening to take her to jail as well as
    threatening to call her son’s college football coach to tell him about the party. Overall, Mary
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    Pritchard described Lt. Braley as “nasty, aggressive, [and] pointing his finger at me.” Lt. Braley
    admits that he informed Mary Pritchard that they could seize her house, and that he talked about
    Stephen Pritchard’s football coach, but he denies yelling and threatening in an aggressive manner.
    Other Plaintiffs and witnesses generally describe a “chaotic” scene with officers yelling, acting
    aggressively, and threatening to use their tasers on people.
    At some point during these events, Kevin Clark, who was 21 years old at the time of the
    party, was using his cell phone to record the police activity. An officer approached Clark and asked
    him what he was doing, Clark responded and the officer walked away. Approximately five minutes
    later another officer told Clark to stop recording and Clark complied. Shortly thereafter, Clark
    claims that he opened his cell phone to view a text message. He was then arrested by Officer Gilbert
    and charged with disorderly conduct by Lt. Johnson. Lt. Johnson maintains that they were concerned
    that Clark’s recording might reveal the identify of undercover liquor control agents if it was
    disseminated online. Clark hired an attorney and the charges were eventually dismissed.
    Days after the incident Mary Pritchard received two anonymous letters purporting to be from
    a law enforcement officer. The first letter described the events of the evening, including the fact that
    the noise complaint came from a police officer’s wife. The letter roughly alleged a conspiracy
    among several officers to unlawfully raid the party. The second letter was a copy of a letter that
    contained the same allegations, which was sent to the Ohio Attorney General. The Hamilton
    Township police suspect that the letter came from one or more of their own officers.
    B. Procedural History
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    Plaintiffs filed this action in federal court on April 8, 2008, alleging various claims under 
    42 U.S.C. § 1983
     and Ohio law. After some discovery, the Defendants filed a motion for summary
    judgment and asserted qualified immunity as to the § 1983 claims, and statutory immunity as to the
    state-law claims. Plaintiffs filed a cross-motion for partial summary judgment. As to both motions,
    the district court granted them in part and denied them in part on various grounds. Defendants now
    appeal the denial of summary judgment with respect to the following claims: (1) the denial of
    qualified immunity to all Defendant officers as to the Pritchards’ Fourth Amendment claims for
    unlawful search of their property; (2) the denial of qualified immunity to Lt. Johnson and Officer
    Gilbert as to Kevin Clark’s Fourth Amendment claim for unlawful arrest; (3) the denial of qualified
    immunity to Lt. Johnson and Officer Gilbert as to Zac Christman’s Fourth Amendment claim for
    unlawful arrest; (4) the denial of qualified immunity to all Defendant officers and Gail Gilbert as to
    the civil conspiracy claims; (5) the denial of statutory immunity to Lt. Johnson and Officer Gilbert
    as to Zac Christman’s false arrest and malicious prosecution claims; (6) the denial of statutory
    immunity to Lt. Johnson and Officer Gilbert as to Kevin Clark’s false arrest and malicious
    prosecution claims; and (7) the denial of statutory immunity to Lt. Braley, Lt. Johnson, and Officer
    Gilbert as to Mary Pritchard’s claim for intentional infliction of emotional distress.
    II. ANALYSIS
    Title 
    28 U.S.C. § 1291
     authorizes appellate review of a district court’s final order. Generally,
    a district court’s denial of summary judgment is not immediately appealable because it is not a final
    order. See Harrison v. Ash, 
    539 F.3d 510
    , 516 (6th Cir. 2008). Likewise, a denial of qualified
    immunity that is premised on the district court’s finding that material facts are in dispute is not
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    immediately appealable, but a district court’s denial of qualified immunity on purely legal grounds
    is immediately appealable. Smoak v. Hall, 
    460 F.3d 768
    , 776–77 (6th Cir. 2006) (citations omitted).
    Accordingly, on interlocutory appeal we only have jurisdiction where a defendant limits his
    argument to “questions of law premised on facts taken in the light most favorable to the plaintiff.”
    Meals v. City of Memphis, 
    493 F.3d 720
    , 726–27 (6th Cir. 2007). We lack jurisdiction “[w]here
    qualified immunity is denied due to a lingering question of whether the evidence supports a finding
    that particular offensive conduct occurred.” 
    Id. at 727
    ; see also Harris v. City of Circleville, 
    583 F.3d 356
    , 364 (6th Cir. 2009) (noting that a defendant’s occasional factual argument will not destroy
    jurisdiction as long as we are still able to address the defendant’s argument on questions of law that
    are premised on the facts taken in the light most favorable to the plaintiff).
    An order denying statutory immunity is only immediately appealable “if the state law
    provides immunity from suit, as opposed to immunity simply from liability.” Chesher v. Neyer, 
    477 F.3d 784
    , 793 (6th Cir. 2007). Ohio statutory immunity provides “immunity from suit, and thus
    warrants interlocutory appellate jurisdiction under the collateral order doctrine.” 
    Id. at 794
    .
    A. The Denial of Qualified Immunity
    We conduct de novo review of a district court’s denial of qualified immunity. Meals, 
    493 F.3d at 728
    . “In order to prevail on a civil rights claim under 
    42 U.S.C. § 1983
    , [a plaintiff] must
    establish that a person acting under color of state law deprived him of a right secured by the
    Constitution or laws of the United States.” Everson v. Leis, 
    556 F.3d 484
    , 493 (6th Cir. 2009)
    (citation omitted). The plaintiff must also overcome the defense of qualified immunity, which if
    granted, shields government officials from personal liability. 
    Id.
     Qualified immunity exists to
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    “acknowledge that reasonable mistakes can be made as to the legal constraints on particular police
    conduct.” 
    Id. at 494
     (citation omitted). “The doctrine protects all but the plainly incompetent or
    those who knowingly violate the law.” 
    Id.
     To that end, we ask two questions to determine whether
    qualified immunity applies: “(1) whether, considering the allegations in a light most favorable to the
    party injured, a constitutional right has been violated, and (2) whether that right was clearly
    established.” Id; see also Saucier v. Katz, 
    533 U.S. 194
    , 200 (2001). We are free to address these
    questions in any sequence. Pearson v. Callahan, 
    129 S. Ct. 808
    , 821 (2009). While the defendant
    must be willing to concede the most favorable view of the facts to the plaintiff on interlocutory
    appeal, the plaintiff still carries the burden of demonstrating that the officials should not be shielded
    by qualified immunity. Everson, 
    556 F.3d at 494
     (citations omitted). We will address whether
    qualified immunity is warranted as to each of the § 1983 claims in turn.
    1. Unlawful Search
    The Pritchards allege that the Defendant officers violated their Fourth Amendment rights by
    conducting an unlawful search of their property. Defendants argue that the district court erred in
    denying qualified immunity as to this claim. Plaintiffs respond that this Court does not have
    jurisdiction to hear this appeal because the denial of qualified immunity was based on a disputed
    issue of material fact.
    The Fourth Amendment ensures “[t]he right of the people to be secure in their persons,
    houses, papers and effects[ ] against unreasonable searches and seizures.” U.S. Const. amend. IV.
    This right is of particular import in a person’s home:
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    [t]he Fourth Amendment protects the individual’s privacy in a variety of settings. In
    none is the zone of privacy more clearly defined than when bounded by the
    unambiguous physical dimensions of an individuals home–a zone that find its roots
    in clear and specific constitutional terms . . . at the very core [of the Fourth
    Amendment] stands the right of a man to retreat into his own home and there be free
    from unreasonable governmental intrusion.
    Payton v. New York, 
    445 U.S. 573
    , 589–90 (1980) (internal citations and quotation marks omitted).
    Thus, the Supreme Court has held that “[i]t is a ‘basic principle of Fourth Amendment law’ that
    searches and seizures inside a home without a warrant are presumptively unreasonable,” 
    id. at 586
    ,
    in absence of exigent circumstances or consent.           The protections that the Fourth Amendment
    provides inside the home have reach beyond the walls of the home. The curtilage of the home,
    which at common law was “the area to which extends the intimate activity associated with the
    ‘sanctity of a man’s home and the privacies of life,’” is considered part of the home for Fourth
    Amendment purposes. Oliver v. United States, 
    466 U.S. 170
    , 180 (1984) (quoting Boyd v. United
    States, 
    116 U.S. 616
    , 630 (1886)). The Supreme Court has provided four factors for determining
    whether an area is part of the home’s curtilage: “[1] the proximity of the area claimed to be curtilage
    to the home, [2] whether an area is included within an enclosure surrounding the home, [3] the
    nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area
    from observation by people passing by.” United States v. Dunn, 
    480 U.S. 294
    , 301 (1987).
    We have previously held that the backyard of a residence is part of the curtilage. See Jacob
    v. Twp. of West Bloomfield, 
    531 F.3d 385
    , 390 (6th Cir. 2008); Widgren v. Maple Grove Twp., 
    429 F.3d 575
    , 582 (6th Cir. 2005) (holding that the cleared area surrounding a home, including the
    backyard, is the curtilage of the house despite the lack of fencing); Daughenbaugh v. City of Tiffin,
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    150 F.3d 596
    , 602–03 (6th Cir. 1998) (holding that a home’s backyard was curtilage even though
    neighbors could see at least a portion of the backyard); United States v. Jenkins, 
    124 F.3d 768
    , 773
    (6th Cir. 1997). Here, the Pritchards’ backyard directly abutted the house, was not able to be viewed
    from the street, and was used for the domestic privacies of life— as demonstrated by the patio, pool
    and use of the backyard for hosting a birthday party. Thus, it was part of the curtilage of the house.
    Perhaps because there is no question that the Fourth Amendment’s protection against warrantless
    searches of the curtilage was clearly established at the time of this incident, Jacob, 
    531 F.3d at 393
    ,
    the parties focus their arguments on the first qualified immunity question, whether there was a
    violation of a constitutional right. We will individually consider this question as to each officer.
    Officer Gilbert. Plaintiffs allege that Officer Gilbert pulled into the Pritchards’ driveway,
    spoke with Mary Pritchard for a moment in the front yard, and then walked around her and went into
    the backyard—the curtilage of their home—without a warrant or exigent circumstances. If true, this
    is a Fourth Amendment violation. In response, Officer Gilbert makes two arguments, both of which
    rely on disputed facts. First, Officer Gilbert argues that he was on the property to conduct what is
    often called a “knock and talk.” A knock and talk —where a police officer knocks on the front door
    of a home for purposes of speaking to the occupants or asking for consent to search the premises —is
    a legitimate investigative technique that does not necessarily run afoul of the Fourth Amendment,
    even if it requires the police officer to enter the curtilage of the home. See United States v. Thomas,
    
    430 F.3d 274
    , 277 (6th Cir. 2005). An officer may initiate a knock and talk without any objective
    level of suspicion. 
    Id.
     (citation omitted). This technique is permissible so long as the encounter does
    not evolve into a constructive entry, 
    id.,
     and we have previously held that a permissible knock and
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    talk can take place in the backyard if knocking on the front door is unsuccessful, and there are
    indications that someone is in or around the house, Hardesty v. Hamburg Twp., 
    461 F.3d 646
    , 654
    (6th Cir. 2006). The problem with the Defendants’ arguments here is that even if the initial
    encounter with Mary Pritchard was a knock and talk, Plaintiffs maintain that the encounter became
    a constructive entry the moment Officer Gilbert walked by Mary Pritchard and entered the backyard
    without justification.4 Officer Gilbert further argues that his entry into the backyard was justified
    because there were exigent circumstances. We have identified four exigent circumstances that
    permit a law enforcement officer to make a warrantless search of person’s home or curtilage: (1) hot
    pursuit of a fleeing felon, (2) imminent destruction of evidence, (3) the need to prevent the suspect’s
    escape, or (4) a risk of danger to the police or others. Taylor v. Michigan Dept. of Natural
    Resources, 
    502 F.3d 452
    , 461 (6th Cir. 2007) (citation omitted). Officer Gilbert contends that he
    only entered the backyard to prevent the escape of Zac Christman, who took off running after
    someone yelled “run!” while Officer Gilbert was speaking with Mary Pritchard. Even assuming
    arguendo that Officer Gilbert would be justified in making an entry into the Pritchards’ backyard
    under those circumstances, his argument here relies on disputed facts.5 Because Plaintiffs maintain
    4
    The Plaintiffs also maintain that the initial encounter with Mary Pritchard was not a knock
    and talk because Officer Gilbert does not know what a knock and talk is and his objective was
    always to go into the backyard to investigate the party. We need not address this question for the
    purposes of this appeal.
    5
    We note that the Supreme Court has cautioned against the use of exigent circumstances as
    a basis for a warrantless entry when the suspected crime is a minor offense. Welsh v. Wisconsin, 
    466 U.S. 740
    , 750–51 (1984) (“Our hesitation in finding exigent circumstances, especially when
    warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense
    for which there is probable cause to arrest is relatively minor.”). Also, while unprovoked flight from
    a police officer may be indicative of wrongdoing, we generally require more to create a reasonable
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    that this sequence of events occurred after Officer Gilbert entered the backyard, Plaintiffs allege that
    the unlawful search occurred before the alleged exigent circumstances arose.
    The existence of disputed issues of material fact was the basis for the district court’s denial
    of qualified immunity on this claim, and we agree. Further, we find that the Defendants have refused
    to concede Plaintiffs’ view of the facts, and that both of Officer Gilbert’s legal arguments are
    premised on his version of the incident.
    Lt. Johnson. Plaintiffs likewise allege that Lt. Johnson unlawfully entered the curtilage of
    their home without a warrant or exigent circumstances. Lt. Johnson contends that he was responding
    to Officer Gilbert’s radio broadcast of a foot pursuit and that this exigent circumstance—responding
    to an officer’s call for assistance—justified his entry onto the Pritchards’ property. Again, the
    officer’s legal argument relies on disputed facts. Lt. Johnson contends that he started en route to the
    Pritchard house only when he heard the radio call. However, Officer Gilbert testified that Lt.
    Johnson was there when he apprehended Zac Christman, and Zac Christman testified that the foot
    pursuit lasted about 30 seconds. This suggests that Lt. Johnson was already on the scene when the
    radio call was placed. These facts, viewed in the light most favorable to the Plaintiffs, could allow
    a jury to conclude that Lt. Johnson was already at the Pritchard house and on the property before any
    radio call was placed, and before any possible exigent circumstances arose, precluding qualified
    immunity on this claim.
    suspicion of criminal activity. See e.g., Illinois v. Wardlow, 
    528 U.S. 119
    , 124–25 (2000) (holding
    that a suspect’s unprovoked headlong flight upon noticing police officers while in an area of heavy
    narcotics trafficking is sufficient to arouse a reasonable suspicion); United States v. Johnson, 
    620 F.3d 685
    , 694–95 (6th Cir. 2010) (collecting cases).
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    Lt. Braley. The Pritchards also allege that Lt. Braley similarly violated their Fourth
    Amendment rights. It is unclear whether the Pritchards allege that Lt. Braley entered the curtilage
    of their home. Lt. Braley testified that he was at the police station when he heard Officer Gilbert’s
    foot pursuit radio call. It is undisputed that Lt. Braley went into the Pritchards’ side yard, but our
    own review of the record does not show that the Plaintiffs have argued that the curtilage to the
    Pritchard home included the side yard.6 Thus, it appears that the Pritchards have not alleged that Lt.
    Braley actually committed an unlawful search of their property. However, the Pritchards also argue
    that Lt. Braley’s involvement in the planning and ordering of the incident make him liable for the
    actions of Officer Gilbert under the theory of supervisory liability.
    We have held that a supervisory officer may be liable under § 1983 if it is shown that the
    superior officer “encouraged or condoned the actions of [the inferior officer].” Bass v. Robinson,
    
    167 F.3d 1041
    , 1048 (6th Cir. 1999). A respondeat superior theory of liability will not suffice here
    because liability must be based on more than the right to control employees or simple negligence.
    See 
    id.
     “At a minimum a plaintiff must show that the official at least implicitly authorized,
    approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.”
    Shehee v. Luttrell, 
    199 F.3d 295
    , 300 (6th Cir. 1999) (citing Hays v. Jefferson County, Ky., 
    668 F.2d 869
    , 874 (6th Cir. 1982)). Here, Plaintiffs have alleged that Lt. Braley made up his mind to “raid”
    6
    Whether the side yard is part of curtilage is an open question in this case. Compare United
    States v. Cousins, 
    455 F.3d 1116
    , 1122–24 (10th Cir. 2006) (finding that a partially enclosed side
    yard that was used as a garden does not constitute the curtilage of the house), with Palmieri v. Lynch,
    
    392 F.3d 73
    , 93–94 (2d Cir. 2002) (holding that a side yard and backyard are included in the
    curtilage to the home). We decline to evaluate whether the Pritchards’ side yard is part of the
    curtilage to the house because the parties have not set forth facts that would allow us to undertake
    the task.
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    Pritchard v. Hamilton Twp. Bd. of Trustees
    the Pritchards’ party from the moment he met with his former police academy commander. They
    also claim that Lt. Braley—faced with the prospect that the operation was coming to an end without
    any reports of problems at the party—fabricated his report that someone in the Pritchards’ side yard
    was yelling. Furthermore, Plaintiffs point to evidence that Lt. Braley and Lt. Johnson came up with
    the idea to have a police officer’s wife place a false noise complaint. Without these alleged acts, the
    Plaintiffs maintain that no police officers would have ever entered their property. Indeed,
    Defendants concede that Officer Gilbert was sent to the scene based on the information provided by
    Lt. Braley. Plaintiffs also suggest that Lt. Braley’s alleged aggressive and angry behavior at the
    scene lends support to their theory. From these facts, viewed in the light most favorable to the
    Plaintiffs, a reasonable jury could conclude that Lt. Braley not only encouraged or condoned the
    actions of Officer Gilbert, but that Officer Gilbert’s actions were a direct result of Lt. Braley’s
    planning and acts.
    Chief Richardson It is undisputed that Chief Richardson did not enter the Pritchards’
    property, thus liability can only attach to Chief Richardson here in his role as a supervisor. For this
    proposition Plaintiffs note that Chief Richardson had a role in planning and ordering the intrusion
    on their property. Plaintiffs maintain that Chief Richardson was present during at least one of the
    meetings regarding the party at the Pritchards. Plaintiffs also allege that Chief Richardson was with
    Lt. Johnson in the police station parking lot when the plan to place a false noise complaint was
    formulated, as well as when the call was placed. Notably, Chief Richardson later reprimanded Lt.
    Johnson for this act, despite his own alleged knowledge of the plan. Still, there does not seem to be
    evidence that Chief Richardson encouraged the alleged unlawful acts, and generally, a passive role
    - 16 -
    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    or a mere failure to act is insufficient to demonstrate that an officer condoned the act. Bass, 
    167 F.3d at
    1048 However, we have held that there is a disputed issue of material fact as to whether the
    officer encouraged or condoned the alleged unconstitutional act where there is evidence of a failure
    to act and an attempt on the part of the supervisory officer to conceal the improper acts. 
    Id.
    Plaintiffs have made such a showing here, pointing to two alleged cover-ups that are pertinent to
    Chief Richardson. First, Plaintiffs argue that because the supervisory officers—including Chief
    Richardson— always planned to “raid” the party, they caused the false noise complaint to be placed
    in hopes covering up the impropriety of the raid when Lt. Braley’s surveillance came up short. Next,
    Plaintiffs argue that Chief Richardson attempted to cover-up his own involvement and knowledge
    of this plan by testifying that he found out about it a week later, which is contradicted by Officer
    Gilbert’s testimony. Plaintiffs also suggest that Officer Gilbert was dispatched to conduct a
    warrantless search because he did not conduct a knock and talk and does not even know what a
    knock and talk means. Finally, we note that the Plaintiffs received anonymous letters—which
    allegedly came from police officers in the Hamilton Township police department—that accused their
    fellow officers of conceiving this scheme. These alleged facts, viewed in the light most favorable
    to the Plaintiffs, rise above a respondeat superior theory of liability. A reasonable jury could
    conclude that Chief Richardson condoned this scheme and that his behavior contributed to the
    alleged constitutional violation.
    Because Officer Gilbert and Lt. Johnson’s legal arguments rely on their own version of the
    facts, we are without jurisdiction to entertain their appeal of the denial of qualified immunity as to
    this claim. See Harris, 
    583 F.3d at 364
    . We agree that the Plaintiffs’ version of the facts does not
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    show that Lt. Braley and Chief Richardson unlawfully searched the Pritchards’ property. However,
    because we find that the Plaintiffs’ version of the facts would allow a reasonable jury to could
    conclude that Lt. Braley and Chief Richardson encouraged and/or condoned the alleged unlawful
    search of the Pritchards’ property, we affirm the district court’s denial of qualified immunity to Lt.
    Braley and Chief Richardson on this claim.
    2. Wrongful Arrest
    Kevin Clark and Zac Christman allege that Lt. Johnson and Officer Gilbert violated their
    Fourth Amendment rights by arresting them without probable cause. Defendants argue that the
    district court erred in denying them qualified immunity as to both claims.
    An individual who has been wrongfully arrested or seized under the color of law can make
    a § 1983 claim based on the Fourth Amendment. Brooks v. Rothe, 
    577 F.3d 701
    , 706 (6th Cir.
    2009). “[I]n order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that
    the police officer lacked probable cause.” Id. (quoting Fridley v. Horrighs, 
    291 F.3d 867
    , 872 (6th
    Cir. 2002)); see also Davenpeck v. Alford, 
    543 U.S. 146
    , 152 (2004). “But under § 1983, an
    arresting agent is entitled to qualified immunity if he or she could reasonably (even if erroneously)
    have believed that the arrest was lawful, in light of clearly established law and the information
    possessed at the time by the arresting agent.” Everson, 
    556 F.3d at 499
     (citations omitted). “[E]ven
    if a factual dispute exists about the objective reasonableness of the officer’s actions, a court should
    grant the officer qualified immunity if, viewing the facts favorably to the plaintiff, an officer
    reasonably could have believed that the arrest was lawful.” Kennedy v. City of Villa Hills, Ky., 
    635 F.3d 210
    , 214 (6th Cir. 2011).
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    We must consider the information possessed by the officer in the totality of the
    circumstances because “an officer cannot look only at the evidence of guilt while ignoring all
    exculpatory evidence.” Everson, 
    556 F.3d at 498
    . Likewise, an officer may not make “hasty,
    unsubstantiated arrests with impunity.” 
    Id.
     While federal law dictates whether probable cause
    existed for the arrest, “[w]hether an officer is authorized to make an arrest ordinarily depends, in the
    first instance, on state law.” Leonard v. Robinson, 
    477 F.3d 347
    , 354 (6th Cir. 2007) (quoting
    Michigan v. DeFillippo, 
    443 U.S. 31
    , 36 (1979)). Because the law is “clearly established that, absent
    probable cause to believe that an offense had been committed, was being committed, or was about
    to be committed, officers may not arrest an individual,” Dietrich v. Burrows, 
    167 F.3d 1007
    , 1012
    (6th Cir. 1999), we will focus on the first qualified immunity question.
    Kevin Clark. Defendants maintain that they had probable cause to arrest and charge Clark
    for disorderly conduct, and that Clark was charged under Ohio Rev. Code § 2917.11(B)(2).
    Plaintiffs maintain that Clark was charged under Ohio Rev. Code § 2917.11(B)(1), and that the
    Defendants lacked probable cause. The district court concluded that it was impossible to tell which
    subsection Clark was charged with because the citation was illegible. In relevant part, the two
    sections provide:
    (B) No person, while voluntarily intoxicated, shall do either of the following:
    (1) In a public place or in the presence of two or more persons, engage in conduct
    likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of
    ordinary sensibilities, which conduct the offender, if the offender were not
    intoxicated, should know is likely to have that effect on others;
    (2) Engage in conduct or create a condition that presents a risk of physical harm to
    the offender or another, or to the property of another.
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    Ohio Rev. Code § 2917.11(B) (emphasis added). Even assuming arguendo that Clark was charged
    under subsection (B)(2), Defendants have not developed any argument as to why it was reasonable
    to arrest Clark for this crime. “The statute therefore requires both that an individual is ‘voluntarily
    intoxicated’ and that the individual ‘present[ ] a risk of physical harm’ either to himself, another, or
    another's property.” McCurdy v. Montgomery County, Ohio, 
    240 F.3d 512
    , 517 (6th Cir. 2001).
    Defendants only note that Clark had “been told to stop videotaping the officers,” and that “[w]hen
    he retrieved his cell phone from his pocket, an officer believed he had resumed photographing the
    activities.” Defendants have not explained why it was reasonable for the officer to believe that (1)
    Clark was intoxicated and (2) the act of videotaping presented a risk of physical harm. Issues that
    are “adverted to in a perfunctory manner, unaccompanied by some effort at developed
    argumentation, are deemed waived.” Spirko v. Mitchell, 
    368 F.3d 603
    , 612 (6th Cir. 2004).
    Accordingly, we affirm the district court’s denial of qualified immunity as to this claim.
    Zac Christman. The district court denied qualified immunity to Lt. Johnson and Officer
    Gilbert on Christman’s § 1983's claim as a matter of law. Defendants maintain that they had
    probable cause to arrest Zac Christman for underage consumption and disorderly conduct. Looking
    first to the disorderly conduct charge, Defendants state that “Christman was also charged with
    disorderly conduct apparently stemming from his running from the officer pursuant to [Ohio Rev.
    Code] § 2917.11(B).” The only accompanying argument is that “[u]nder the circumstances . . . [the
    Defendants’] actions were objectively reasonable.” There is no explanation or argument as to why
    it was objectively reasonable for the officer to believe that (1) Christman was intoxicated and (2) that
    running from the police was conduct that presented a risk of harm to Christman or someone else.
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    Because Defendants have not developed this argument, we deem it to be waived.7 Spirko, 
    368 F.3d at 612
    .
    This leaves the arrest and charge for underage consumption. Defendants can still escape
    liability from Christman’s entire claim if they are able to show that they are entitled to qualified
    immunity on this claim because Defendants only needed probable cause to arrest Christman on “a
    charge,” rather than all charges. Atkins v. Twp. of Flint, 94 Fed. App’x 342, 348 (6th Cir. 2004)
    (emphasis in original). Looking first to the underage consumption statute, Ohio law provides in
    relevant part:
    No underage person shall knowingly . . . consume any beer or intoxicating liquor in
    any public or private place. No underage person shall knowingly be under the
    influence of any beer or intoxicating liquor in any public place. The prohibition set
    forth in (E)(1) of this section against an underage person knowingly possessing,
    consuming, or being under the influence of any beer or intoxicating liquor shall not
    apply if the underage person is supervised by a parent . . . .
    Ohio Rev. Code § 4301.69(E)(1) (emphasis added).
    7
    We note that there is no evidence in the record as to either of the two elements. There is
    evidence that Christman had consumed alcohol, but there is no evidence that the officers thought he
    was intoxicated. Likewise, the “second element requires some affirmative showing of
    dangerousness, as the sole fact that an individual is intoxicated does not give rise to a §
    2917.11(B)(2) infraction.” McCurdy, 
    240 F.3d at 516
     (citations omitted). At least one Ohio court
    has held that running from a police officer in a bad neighborhood while drunk at 2:30 a.m. does not
    create the risk of harm contemplated by this statute, even though the police officer ordered the
    defendant to stop. State v. Pennington, No. 1998CA00137, 
    1998 WL 818632
    , at *1–2 (Ohio Ct.
    App. Nov. 16, 1998). The committee comment to the statute provides two examples of violations,
    when someone is intoxicated and “he attempts a tight rope on a bridge parapet or curls to sleep in
    a doorway in freezing weather.” 
    Id.
     Thus it appears that Christman’s conduct—running from an
    officer and ignoring the officer’s order to stop—does not rise to the level of dangerousness
    contemplated by this statute.
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    Next, we look to the information possessed by Defendants at the time of the arrest. Everson,
    
    556 F.3d at 499
    . There is no dispute that Christman was underage and had consumed alcohol at the
    party. Further, Defendants do not seem to dispute that they knew Christman’s father was with him
    at the party: Lt. Johnson spoke to Christman’s father at the scene, and Officer’ Gilbert’s incident
    report states that Christman “was released to his father who was at the party.” Defendants certainly
    could not have ignored the fact that Christman’s father was present and charged Christman with
    underage consumption anyway. See Ahlers v. Schebil, 
    188 F.3d 365
    , 371–72 (6th Cir. 1999)
    (explaining that police officers may not “simply turn a blind eye toward potentially exculpatory
    evidence known to them”). These facts all support the district court’s conclusion that the Defendant
    officers lacked probable cause because they possessed all of the facts necessary to determine that
    Christman had not violated the plain language of the Ohio underage consumption statute at the time
    of his arrest.
    However, Defendants argue that they were missing one additional piece of information; they
    were unaware that Ohio’s underage consumption statute excepted Christman’s behavior.8 The
    question before us on appeal is whether it was reasonable for Lt. Johnson and Officer Gilbert to
    believe that the arrest of Christman for underage consumption was lawful in light of the information
    possessed by the officers and clearly established law. Everson, 
    556 F.3d at 499
    . To determine
    whether the Defendant officers’ alleged ignorance of the Ohio underage consumption statute is
    relevant to this question, we must dive a little deeper into the qualified immunity doctrine. “‘In
    8
    There is no evidence in the record concerning Lt. Johnson’s knowledge, or lack thereof, of
    the underage consumption statute. Officer Gilbert testified that he still remains unaware of whether
    a minor may consume alcohol on private property with a parent.
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    general, the existence of probable cause in a § 1983 action presents a jury question, unless there is
    only one reasonable determination possible.’” Everson, 
    556 F.3d at 499
     (quoting Fridley, 
    291 F.3d at 872
    ). But,“[q]ualified immunity ordinarily applies unless it is obvious that no reasonably
    competent official would have concluded that the actions taken were unlawful.” Chappell v. City
    of Cleveland, 
    585 F.3d 901
    , 907 (6th Cir. 2009) (citation omitted). By protecting “all but the plainly
    incompetent or those who knowingly violate the law,” qualified immunity “gives ample room for
    mistaken judgments.” 
    Id.
     (quoting Hunter v. Bryant, 
    502 U.S. 224
    , 229 (1991)). Furthermore, the
    doctrine of qualified immunity applies “irrespective of whether the official’s error was a mistake of
    law or a mistake of fact, or a mistake based on mixed questions of law and fact.” 
    Id.
     (citing Pearson,
    
    129 S. Ct. at 815
    ). The record before us shows that this was not a mistake of fact because the
    Defendant officers possessed all of the necessary information to know that Christman’s conduct was
    legal. Thus, the more narrow question before us on appeal is whether the Defendants’ alleged
    mistake about the Ohio underage consumption statute was reasonable.
    In a line of cases, our Court has addressed a somewhat analogous situation, whether an
    officer has probable cause to arrest an individual who may have an affirmative justification for a
    suspected criminal act. See Fridley, 
    291 F.3d at 872
    ; Painter v. Robertson, 
    185 F.3d 557
     (6th Cir.
    1999); Estate of Dietrich v. Burrows, 
    167 F.3d 1007
     (6th Cir. 1999). In both Dietrich and Painter,
    the arrestee was charged with carrying a concealed weapon despite the presence of a statute that
    provided that an individual engaged in a business activity that is particularly susceptible to criminal
    attack has an affirmative defense to the charge. Painter, 
    185 F.3d at
    564–65; Dietrich, 
    167 F.3d at
    1010–11. In both cases we denied qualified immunity, holding that the arresting police officers
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    lacked probable cause because the officers were aware of sufficient facts and circumstances to
    establish that the arrestees had a statutorily legitimated affirmative justification for the suspected
    criminal act at the time of the arrest. Painter, 
    185 F.3d at 571
    ; Dietrich, 
    167 F.3d at 1012
    .
    In Fridley, we discussed the meaning of the two cases. We identified the general rule as
    follows: “probable cause determinations include ‘facts and circumstances establishing a statutorily
    legitimated affirmative justification for the suspected criminal act.’” 
    291 F.3d at 873
     (quoting
    Painter, 
    185 F.3d at 570
    ). Then we explained two corollaries to this rule. First, “‘a peace officer,
    in assessing probable cause to effect an arrest, may not ignore information known to him which
    proves that the suspect is protected by an affirmative legal justification.’” 
    Id.
     (quoting Painter, 
    185 F.3d at 571
    ). Next, we noted that the general rule “‘does not mandate that law enforcement
    operatives should conduct quasi-trials as a necessary predicate to the warrantless arrest of
    perpetrators. . . . Rather, [the] court . . . merely resolves that, where a reasonable officer would
    conclusively know that an investigative target’s behavior is protected by a legally cognizable
    affirmative defense, that officer lacks a legal foundation to arrest that person for that behavior.’” 
    Id.
    (quoting Painter, 
    185 F.3d at
    571 n.21). In these cases, when we refer to whether an officer would
    conclusively know that the defendant is protected by an affirmative defense, we have focused
    entirely on the facts and circumstances known to the officer at the time of the arrest; not on the
    officer’s knowledge, or lack thereof, of the statute that provides the defense. Knowledge of the
    statute is imputed to the police officers. Here, Defendants have not advanced an argument against
    imputing knowledge of the Ohio underage consumption statute to the police officers. The language
    - 24 -
    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    and meaning of this statute is unambiguous, and we see no reason to hold that it would be reasonable
    for an officer to be ignorant of the very statute that he is enforcing.9
    At first blush it might seem unduly harsh to have an expectation that law enforcement
    officers should know the intricacies of criminal statutes, but this position finds support in other areas
    of the qualified immunity doctrine that regularly impute knowledge of statutes and caselaw to
    officers. Indeed, it is a touchstone of qualified immunity doctrine that “a reasonably competent
    public official should know the law governing his conduct.” Harlow v. Fitzgerald, 
    457 U.S. 800
    ,
    818–19 (1982). For instance, we impute knowledge of state-law definitions and state-court
    interpretations of a statute to police officers when we decide whether an officer could reasonably
    conclude that probable cause exists under a given set of circumstances. See, e.g., Kennedy, 
    635 F.3d at
    215–16; Logsdon v. Hains, 
    492 F.3d 334
    , 341–43 (6th Cir. 2007). Likewise, we impute
    knowledge of clearly established constitutional caselaw to police officers when we state that the
    “binding precedent from the Supreme Court, the Sixth Circuit, the district court itself, or other
    circuits that is directly on point,” places a law enforcement official “‘on notice that [his] conduct
    violates established law.’” Holzemer v. City of Memphis, 
    621 F.3d 512
    , 527 (6th Cir. 2010) (citation
    omitted) (quoting Hope v. Pelzer, 
    536 U.S. 730
    , 741 (2002)); see also Leonard v. Robinson, 
    477 F.3d 347
    , 358–61 (6th Cir. 2007) (imputing knowledge of First Amendment principles to an officer,
    9
    Indeed, an ignorance of the law defense—especially when the law is clear— in the qualified
    immunity context “might foster ignorance of the law or, at least, encourage feigned ignorance of the
    law.” Glasson v. City of Louisville, 
    518 F.2d 899
    , 909–10 (6th Cir. 1975). Permitting an officer to
    be ignorant of the law would also draw a stark contrast with our long tradition of imputing
    knowledge of criminal statutes to the general public. See e.g., Bryan v. United States, 
    524 U.S. 184
    ,
    195 (1998) (noting that the traditional rule is that “ignorance of the law is no excuse” for a
    defendant’s criminal conduct).
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    and holding that probable cause did not exist because the officer should have known that the
    defendant’s conduct was protected by the Constitution, even though it was probably prohibited by
    the statute); Robinson v. Bibb, 
    840 F.2d 349
    , 350 (6th Cir. 1988) (noting that we expect a reasonably
    competent officer to know the law governing his conduct but suggesting that it might be unfair to
    impute knowledge of a case to an officer only four days after the case is decided).
    In light of these principles, and the abundantly plain language of the statute at issue here, we
    hold that the Defendant officers did not have probable cause to arrest Christman for underage
    drinking because the facts and circumstances known to the officers established a statutorily
    affirmative justification of the suspected criminal act. Fridley, 
    291 F.3d at 873
    . Accordingly, we
    affirm the district court’s denial of qualified immunity as to this claim.
    3. Civil Conspiracy
    The Plaintiffs allege that the Defendant Officers and Gail Gilbert conspired to violate their
    civil rights by “entering into an agreement to carry out the planned unlawful raid.” Defendants argue
    that the district court erred in denying qualified immunity as to these claims. A civil conspiracy
    under § 1983 is “an agreement between two or more persons to injure another by unlawful action.”
    Revis v. Meldrum, 
    489 F.3d 273
    , 290 (6th Cir. 2007). To successfully plead a civil conspiracy,
    Plaintiffs must allege that “(1) a single plan existed, (2) the conspirators shared a conspiratorial
    objective to deprive the Plaintiffs of their constitutional rights, and (3) an overt act was committed.”
    
    Id.
     (citation omitted). “Express agreement among all the conspirators is not necessary to find the
    existence of a civil conspiracy [and] [e]ach conspirator need not have known all of the details of the
    illegal plan or all of the participants involved.” Hooks v. Hooks, 
    771 F.2d 935
    , 944 (6th Cir. 1985).
    - 26 -
    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    “If a private party has conspired with state officials to violate constitutional rights, then that party
    qualifies as a state actor and may be held liable pursuant to § 1983.” Cooper v. Parrish, 
    203 F.3d 937
    , 953 n.2 (6th Cir. 2000) (citing Wyatt v. Cole, 
    504 U.S. 158
    , 168–69 (1992)).
    Private citizens are generally not entitled to qualified immunity from suit under § 1983. Id.
    at 952. However, Defendants contend that Gail Gilbert should not be subject to this general rule.
    We have recognized a limited exception for “‘certain private defendants, such as doctors or lawyers
    who performed services at the behest of the sovereign.’” Cullinan v. Abramson, 
    128 F.3d 301
    , 310
    (6th Cir. 1997) (quoting Richardson v. McKnight, 
    521 U.S. 399
    , 407 (1997) (denying qualified
    immunity to private parties who operated a prison at behest of the state because there was no
    historical tradition of granting immunity in that context)). Gail Gilbert’s actions—placing a false
    noise complaint at the behest of her police-officer husband—do not fit within our Court’s narrow
    category of private actors entitled to qualified immunity. In Cullinan this Court granted qualified
    immunity to outside counsel that was hired to perform basically the same function as the city’s in-
    house counsel. Id. at 310. In contrast, in Cooper we denied qualified immunity to an attorney who
    was working alongside prosecutors to pursue legal action against nightclubs. 
    203 F.3d at
    952–53.
    The Cooper Court found that the important distinction here was that the attorney was not officially
    acting at the sovereign’s behest because he was not retained via contract or paid by the government.
    
    Id. at 952
    . Furthermore, the Court thought that granting qualified immunity to the private attorney
    would be inconsistent with the goals and objectives of the doctrine because he was not performing
    any “unique government functions when he allegedly engaged in the unconstitutional conduct at
    issue.” 
    Id. at 953
    . Here, Gail Gilbert was clearly not “paid” or “retained” by the government to
    - 27 -
    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    perform any function. Likewise, she was not overtly performing or acting at the behest of the
    government when she made the noise complaint, because she purposely remained anonymous. Gail
    Gilbert also was not undertaking a role that is typically assumed by the police officers, i.e. she was
    not calling to request officers to be dispatched to a possible crime—she pretended to be a private
    citizen making a legitimate noise complaint.
    Next, Defendants contend that the fictitious noise complaint is the only basis for the
    conspiracy claim, and accordingly, qualified immunity is appropriate for all Defendants because
    there is no showing that the phone call violated the Plaintiffs’ constitutional rights. This argument
    relies on a misunderstanding of the Plaintiffs’ civil conspiracy claim. The Plaintiffs certainly point
    to the noise complaint as a part of the conspiracy to conduct “the planned unlawful raid.” However,
    the Plaintiffs do not, necessarily, allege that the noise complaint was unconstitutional, just that it was
    placed in furtherance (to justify) the unconstitutional conduct. As the preceding analysis shows, the
    Plaintiffs have alleged that the Defendants conspired to carry out at least one unconstitutional act,
    the warrantless entry onto the Pritchards’ property. As evidence of the plan and conspiracy, the
    Plaintiffs point to the meeting between the Lt. Braley and his former police academy commander,
    the meetings prior to the party between the Defendant officers, Lt. Braley’s allegedly fabricated
    observations of the party, the false noise complaint, inconsistent testimony from Defendant officers,
    and the anonymous letters—allegedly from Hamilton Township police officers— that roughly
    accused Defendant officers of entering into a conspiracy to conduct this unlawful activity.
    If we had determined that there was no underlying constitutional harm, we would grant
    qualified immunity here, see Revis, 
    489 F.3d at
    386–87, however, our determination that a
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    constitutional violation could be proven at this stage of the litigation defeats the Defendant officers’
    assertion of qualified immunity, see White v. McKinley, 
    519 F.3d 806
    , 815 (8th Cir. 2008).
    Accordingly, we affirm the district court’s denial of qualified immunity as to this claim.
    B. The Denial of Statutory Immunity
    Next, we consider the Defendants’ assertion of statutory immunity as to the Plaintiffs’ state-
    law claims. Clark and Christman bring state-law claims of false arrest and malicious prosecution
    against Lt. Johnson and Officer Gilbert. Mary Pritchard brings a state-law claim of intentional
    infliction of emotional distress against Lt. Johnson, Lt. Braley and Officer Gilbert. Defendants
    maintain that they were entitled to summary judgment premised on statutory immunity. The district
    court held that material disputes of fact preclude a grant of summary judgment on this basis.
    We conduct de novo review of a district court’s denial of summary judgment based on
    statutory immunity from suit. Cresher v. Neyer, 
    477 F.3d 784
    , 796 (6th Cir. 2007). “Summary
    judgment is proper where there exists no genuine issue of material fact and the moving party is
    entitled to judgment as a matter of law.” 
    Id.
     (citing Fed. R. Civ. P. 56(c)). The court must construe
    the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec.
    Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986). “The central issue is ‘whether the
    evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-
    sided that one party must prevail as a matter of law.’” Cresher, 477 F.3d at 796 (quoting Anderson
    v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 251–52 (1986)).
    Ohio provides statutory immunity against civil liability to government employees unless one
    of the following exceptions applies:
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    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    (a) The employee’s acts or omissions were manifestly outside the scope of the
    employee’s employment or official responsibilities;
    (b) The employee’s acts or omissions were with malicious purpose, in bad faith, or
    in a wanton or reckless manner;
    (c) Civil liability is expressly imposed upon the employee by a section of the Revised
    Code . . .
    Ohio Rev. Code § 2744.03(A)(6). Plaintiffs maintain that subsection (b) applies here because they
    allege that the Defendants’ acts were done with “malicious purpose, in bad faith, or in a wanton or
    reckless manner.” Defendants maintain that there is no evidence that their conduct falls under this
    exception.
    One Ohio court recently explained how Ohio courts have interpreted this exception to
    statutory immunity:
    One acts with a malicious purpose if one willfully and intentionally acts with a
    purpose to cause harm. Malice includes the willful and intentional design to do
    injury, or the intention or desire to harm another through conduct which is unlawful
    or unjustified. Bad faith is defined as a dishonest purpose, moral obliquity, conscious
    wrongdoing, or breach of a known duty through some ulterior motive or ill will. A
    person acts wantonly if that person acts with a complete failure to exercise any care
    whatsoever. One acts recklessly if one is aware that one’s conduct creates an
    unreasonable risk of physical harm to another[.] Recklessness is more than mere
    negligence in that the person must be conscious that his [or her] conduct will in all
    probability result in injury.
    Spears v. Akron Police Dept., No. 2487, 
    2010 WL 625822
    , at *4 (Ohio. Ct. App. Feb. 25, 2010)
    (unpublished); see also Woods v. Miamisburg City Schs., 
    254 F. Supp. 2d 868
    , 881 (S.D. Ohio 2003)
    (conducting a similar review of Ohio state court decisions that define these terms). Furthermore,
    looking specifically to a claim of malicious prosecution, malice means “an improper purpose, or any
    purpose other than the legitimate interest of bringing an offender to justice.” Criss v. Springfield
    - 30 -
    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    Twp., 
    564 N.E.2d 440
    , 443 (Ohio 1990); see also Melanowski v. Judy, 
    131 N.E. 360
    , 361 (Ohio
    1921) (“In actions for malicious prosecution, while malice is an essential element, the want of
    probable cause is the real gist of the action. If want of probable cause be proven, the legal inference
    may be drawn that the proceedings were actuated by malice.”).
    As to the appeals of Christman and Clark, Defendants argue that their conduct “cannot be
    described with malicious purpose, in bad faith, or in wanton or reckless manner.” However, as
    discussed above, a jury could determine that the Defendants lacked probable cause to arrest Clark
    and Christman, which supports an inference of malice. Melanowski, 131 N.E. at 361. Plaintiffs
    could also demonstrate bad faith by proving that Lt. Johnson and Officer Gilbert had no reason to
    believe Clark and Christman were intoxicated, a necessarily element to the charge of disorderly
    conduct. Furthermore, bad faith and malice could be shown by proving Plaintiffs’ allegations that
    the Defendant officers caused a fictitious noise complaint to be placed in hopes of justifying the
    Pritchard raid. Accordingly, we find that Plaintiffs have alleged sufficient facts such that a
    reasonable jury could conclude that Lt. Johnson and Officer Gilbert were acting with malice or bad
    faith in arresting and charging Clark and Christman.
    As to Mary Pritchard’s claim, Defendants first argue that Lt. Braley’s alleged abusive and
    aggressive conduct toward Mary Pritchard is insufficient for a showing of malice. Defendants rely
    on Stoll v. Gardner, which held that a police officer’s inappropriate and unprofessional comments,
    even when viewed in the light most favorable to the plaintiff, did not constitute a showing of malice.
    
    912 N.E.2d 165
    , 173 (Ohio Ct. App. 2009). However, Lt. Braley’s behavior is not the only piece
    of evidence that Mary Pritchard has provided. She has also alleged that Lt. Braley, and the other
    - 31 -
    No. 09-4594
    Pritchard v. Hamilton Twp. Bd. of Trustees
    Defendant officers, concocted this operation at the behest Lt. Braley’s friend, and that there was
    nothing to justify the officers “raiding” the birthday party on her property. If true, this is sufficient
    for a showing of malice. Likewise, proving that the false noise complaint was placed without
    justification would be sufficient for a showing of malice. Because a jury could reasonably conclude
    that the Defendants acted with bad faith or malice, we conclude that disputed issues of material fact
    preclude a finding of statutory immunity as to these claims. Accordingly, we affirm the district
    court’s denial of statutory immunity.
    III. CONCLUSION
    For these reasons, we find that we are without jurisdiction to hear Lt. Johnson and Officer
    Gilbert’s appeal of the denial of qualified immunity as to the Pritchards’ unlawful search claim, and
    we AFFIRM the judgment of the district court as to the remainder of the claims.
    - 32 -