Peet v. City of Detroit

ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. HOLSCHUH, D.J. (pp. 568-85), delivered a separate opinion concurring in part and dissenting in part.

OPINION

ROGERS, Circuit Judge.

This appeal is composed of two related cases. Both cases are actions under 42 U.S.C. § 1983 seeking damages from individual Detroit police officers for their alleged unconstitutional seizure and malicious prosecution of the plaintiffs. The plaintiffs, Dennis Peet and Jeemell Spencer, further seek to hold the City of Detroit liable for the officers’ alleged constitutional violations. On appeal, the plaintiffs seek to overturn the district court’s grant of summary judgment in favor of Dwight Pearson and the City of Detroit. For the reasons given below, we affirm.

I.

On the night of April 27, 2000, Detroit police officers Robert Petersen and Charles Howard responded to a call reporting shots fired in progress at the Coney Island restaurant located at 12521 Mack Avenue in Detroit. When they arrived, the officers discovered Reed Byrd suffering from a gunshot wound to the abdomen. Paramedics arrived and transported Byrd to the hospital, where he died at 11:31 p.m. The Wayne County Medical Examiner’s Office ruled Byrd’s death a homicide. When the officers arrived at the scene of the shooting, they also discovered Leonard McGlory, who had suffered multiple gunshot wounds to his legs. McGlory was transported to the hospital for treatment.

Investigator Pearson of the Detroit police conducted an investigation to determine the identity of the shooter and any accomplices. Investigator Pearson identified the plaintiffs, Dennis Peet and Jeemell Spencer, as suspected accomplices by relying, primarily, on Spencer’s pager number, which an eyewitness, Feanda Wilson, provided. The day after the shooting, on April 28, 2000, the police took Peet and Spencer into custody for questioning and put them in a live line-up to see whether witnesses could identify Peet and Spencer. Wilson identified them as accomplices of the murderer. Peet and Spencer remained in jail from April 28, 2000, until their acquittal of all charges on March 28, 2001.

A. Information That Police Had Prior To Taking Peet and Spencer Into Custody

The record contains the following evidence as to what the police knew prior to taking Peet and Spencer into custody. John Anderson, who was robbed by the gunman and his accomplices on the night of the shooting, gave a statement to the Detroit police early the next morning at 12:55 a.m. Anderson was “at the gas station” near the Coney Island restaurant “waiting [in line] to pay for my gas” when three men walked in and acted like “they going to buy something.” Two of the men stood near Anderson. One of the men yelled at Anderson, “Get that thing.” Then, “the other guy that was standing next to me pulled out a gun. I looked at the other guy then the guy said, ‘B[* * *] you know what I mean.’ ” Anderson then gave the man his money, a total of $125. Anderson subsequently opened the gas station door and ran to his car. As he pulled away in his car, he “heard a gunshot.” In total, Anderson heard two gunshots between 10:15 p.m. to 10:30 p.m. on April 27, 2000.

When asked for a description of the men in the gas station who stood near him, Anderson described the first as a black male aged 20 to 25, who was 5'9" tall and weighed 165 to 170 pounds. The man wore a gray pullover jacket with a hood and gray jogging pants. Anderson described the second man as a black male, aged 18 to 25, who was 5'7" to 5'8" tall and weighed 160 pounds. He wore a red pullover jacket. Anderson did not provide a description of the third person allegedly involved.

Jmo Bracey, who was robbed by the same three men that victimized Anderson on the night of the shooting, gave a statement to the Detroit police early the next morning at 3:05 a.m. Bracey recounted what he saw and heard the previous night. Bracey and his friend Leonard McGlory drove to the Coney Island restaurant and ordered food. Bracey walked to the nearby gas station to buy a cigar. McGlory waited for the food at the restaurant. “When I walked out of the Coney Island,” Bracey told the police, “3 guys walked up behind me, like from around the corner of the building.” Bracey “saw one guy reach up inside his coat like he was getting a gun out, and I figured I was about to get robbed.” Bracey told the police:

Just then a crackhead called out to the guy and got his attention, and I got inside the gas station before he got his gun out. I told the guy behind the counter that I was about to get robbed, and I took my gold chain off and put it in my sock. Then the 3 guys came in and the one guy took his gun out and put it up to my neck. He says, “Give me your chain and your jacket.” I told him that I gave my chain to the guy behind the counter, so the guy with the gun just took my coat.... One of the other guys took my money $100 (5-$20’s) out of my pocket. The third guy was waiting by the door, like watching out. The guy behind the counter locked the door where they was inside, but after they robbed me, they snatched the door loose and got out.

I saw 2 of them, I think, run up into the Coney Island, and I heard some shots while they were inside, that had to be when they shot Leonard [McGlory], Then they ran out and the one with the gun shot 3 times into the front windshield of the red car [in front of the Coney Island], and shot the guy inside the cai'. Then they took off and ran around the corner of the Coney Island back toward the car wash and Anderson Street. I didn’t see them any more after that. I checked on Leonard [McGlory], and he was laying on the floor under the chair back of the video game in the Coney Island, and he was shot in the legs.

Bracey transported McGlory to Riverview Hospital for treatment. McGlory told Bracey that the men had robbed him.

Bracey told the police that he had never seen the men before. Bracey described the gunman as a black male aged 22, who was 5'6" to 57" tall, weighed 160 pounds, and had light brown skin and a short-trimmed beard. The gunman wore his hair in braids and was wearing a gray “sweater-jacket, like a spring jacket, and black pants.”

Bracey described the man who took his $100 as a black male aged 20 to 25, who was 5'6" tall, weighed 150 pounds, and had “dark skin.” Bracey described the third man, the one who stood watch, as a black male of the same age as the man who took his money. The third man stood six feet tall, was thin, and had “brown skin.” Bra-cey said that only the first man had a gun.

Bracey also said that the “girl who worked in the Coney Island,” presumably Feanda Wilson, told him that the men had been in the restaurant prior to the shooting and that a friend of the shooter’s had given her his number.

Feanda Wilson gave a statement to Detroit police in the early morning after the shooting. Wilson described the events that led up to the shooting. A little before 10:00 p.m., Wilson was at the Coney Island restaurant sitting in her friend Reed Byrd’s car, a red Ford Escort parked just outside the restaurant’s door. While conversing with Byrd in his car, Wilson saw “a black guy wearing a light gray jogging suit” walk past and head toward the nearby gas station. Wilson then went to work behind the counter at the restaurant. Moments later, the man in the gray jogging suit entered the restaurant. The man in the jogging suit looked out the window. Wilson then saw two men outside “next to [Byrd’s] car, one on each side of it.” Wilson

saw one of the guys open the driver’s door and grab my friend and grabbed his black jacket and his red/white/blue shirt off [of] him. My friend was trying to back up and while this was taking place, this guy inside the restaurant with the gray jogging suit went over to a customer who was sitting next to the video game. He told the customer, “What the f[* * *] are you looking at”? The customer said, “I ain’t seen nothing”. The guy said, “Naw n[* * *]a, you saw something,” then he just started shooting. Then the guy with the jogging suit [went] outside and over to my Mend’s car where the other guys are trying to grab my Mend out of his car. The guy at the driver’s door said, “Get this mother f[* * *]r too.” Then, the guy with the jogging suit just starts shooting at my Mend. Then he runs around by the garbage cans. The two other guys who were at the car got into a dark blue Ford F 150 pickup, late 80’s, early 90’s, and backed up, then took off.

Wilson described the man in the jogging suit as a black male, aged 20 to 23, who was 5'7" tall and weighed 165 to 170 pounds with a light complexion. The man wore his hair in braids and also wore a white shirt. Wilson said that the man shot the patron in the restaurant and her Mend in the ear about three times each.

Wilson described the man who was at the driver’s side door of her Mend’s car as a black male, aged 20 to 25, who was 5'4" to 5'5" tall and weighed 170 pounds with a dark complexion. The driver’s side man wore his hair in braids and also had a mustache. Wilson reported that the man wore a leather jacket and dark pants. Earlier, the driver’s side man had “been in the restaurant and gave me his phone number, it was 232-0235 or 6235.”

Wilson described the man who approached the car from the passenger’s side as a black male, aged 20 to 25, who was 5'8" tall, weighed 180 pounds, and had a light complexion. The passenger’s side man wore his hair “low cut,” and that night had worn a gray, hooded sweatshirt and light-colored pants. When asked if she had seen any of these people before, Wilson replied ‘Tes.” The two had ordered food earlier that night and had eaten their food in the getaway truck while talking.

In addition to this statement given the morning after the shooting, Wilson also spoke with Officer Petersen at the scene of the crime right after the shooting occurred. A police report taken at 9:50 p.m. on April 27 listed Feanda Wilson as the person reporting the offense. The report is not consistent with certain portions of Wilson’s account given early the next morning. For instance, the police report identified only two perpetrators, whereas Wilson identified three in her later statement. The police report also confused Reed Byrd with Leonard McGlory, stating that complainant # 1 (identified as Reed Byrd in the report’s opening) was shot inside the restaurant, while complainant #2 (identified as McGlory) was reported as having been shot in the red car outside the restaurant. Wilson’s statement the following morning did not confuse Byrd and McGlory. The police report did not attribute any of its contents to Wilson specifically, and the report identified four other witnesses who might have been sources for the report. It also contained information that Wilson almost certainly did not provide, such as the vehicle identification number of Byrd’s car. Petersen signed the report, and it does not contain Wilson’s signature or any other indicator of its adoption by Wilson.

The police located and identified Spencer on April 28 by using Spencer’s pager number, which they obtained from Wilson, and took him into custody. The record, however, gives no indication how the police initially came to know of Peet’s relevance to the shooting. Apparently, the police also learned of Peet in the course of tracking down Spencer using the pager number. When they approached Peet, he identified himself to Officer Mark Amos as Dennis Peet, showed the officer identification, and admitted to having witnessed a crime that had been committed at the Coney Island restaurant. The police then told Peet that he “was a witness to the murder of Reed Byrd,” and demanded that he participate in the police investigation of the crime. Officer Amos told Peet that he was not under arrest but nevertheless handcuffed him and drove him downtown in a police car, despite his protestations and his preference to be driven by family members.

B. Events After Police Took Peet and Spencer Into Custody

That evening, Peet and Spencer were put into separate line-ups to see whether Wilson could identify them as the murderer’s accomplices. At the line-up, Wilson identified both Peet and Spencer as the shooter’s accomplices. Spencer’s line-up occurred at 5:00 p.m., while Peet’s line-up occurred at 7:00 p.m. According to the deposition of Officer J. Fisher, who commented on a photograph of Peet’s line-up at Fisher’s deposition, Peet was the second shortest of six participants in Peet’s lineup. Officer Fisher further testified, based on a photograph of Spencer’s line-up, that it looked like Spencer wore his hair in braids, but added, “It’s hard to see.” Officer Fisher did not say in his deposition that others in the line-up wore their hair differently than Spencer.

Following Wilson’s identification of Peet and Spencer on April 28, 2000, Investigator Pearson prepared an Investigator’s Report for both Spencer and Peet, which Investigator Pearson completed at around 8:00 p.m. A judge subsequently signed an arrest warrant for Peet and Spencer, whom prosecutors later charged. On May 24, 2000, Peet and Spencer appeared at a preliminary hearing where a state judge determined that probable cause existed to hold them until trial on charges of first degree murder.

Meanwhile, evidence in the case continued to develop in a manner that, on balance, tended to exculpate Peet and Spencer. The police took' a statement from McGlory at the hospital on May 2, 2000, recounting what he saw and heard the evening of April 27. Two days later, on May 4, 2000, the police took a second statement from Jmo Bracey. Neither of these witnesses provided information linking Peet or Spencer to the crime. Following the April 28 arrest of Peet and Spencer, Investigator Pearson conducted additional line-ups involving the plaintiffs, none of which produced positive identifications of Peet or Spencer as suspects.

Investigator Pearson wrote in his notes on May 2 at 8:00 p.m., “Feanda Wilson is the only statement out of place. Setting up polygraph for her for 5-3-00 to see if she is lying about the two suspect[s].... Feanda no longer works at Super Coney Island. Fired for stolen money from business.” On June 9, 2000, the Detroit police completed a test for fingerprints on Byrd’s red Escort. No print impressions matched the prints of Byrd, Peet, or Spencer.¹

Peet and Spencer remained in jail from April 28, 2000, until their acquittal of all charges on March 28, 2001.

C. Procedural History

In April 2002, Peet brought his suit in Michigan state court, but defendants removed the case to the United States District Court for the Eastern District of Michigan. Peet asserted § 1983 claims based on constitutional violations, including arrest without probable cause and malicious prosecution, as well as state-law claims. (The district court later remanded the state law claims.) Shortly after the filing of Peet’s lawsuit, Spencer brought his own identical lawsuit in the Eastern District of Michigan.

Following discovery, all parties moved for summary judgment. The district court denied the plaintiffs’ summary judgment motion but granted summary judgment in favor of the defendants in two steps. First, on January 19, 2005, the district court granted the defendants’ motions for summary judgment as to the individual officers except Investigator Pearson, and granted summary judgment in favor of Detroit on the municipal liability claims. The district court took the defense motions for summary judgment under advisement as to Investigator Pearson. Second, on January 31, 2005, the district court issued opinions and orders in both the cases of Peet and Spencer granting the defendants’ motions for summary judgment as to Investigator Pearson. This appeal followed.

II.

Reviewing de novo, we affirm the district court’s grant of summary judgment to all defendants as to Spencer’s suit, because no reasonable juror could find that probable cause did not support Spencer’s arrest. In his brief, Spencer alleges one constitutional violation with respect to his arrest: he claims that it was unsupported by probable cause. Confining our review to the central issue raised by Spencer, we affirm because probable cause existed to arrest him for the robbery of Reed Byrd.

A.

The police had probable cause to believe that Spencer had robbed Reed Byrd at Coney Island on April 27. Officer Amos consequently had probable cause to effect Spencer’s arrest when the police took Spencer into custody prior to the police line-up. In particular, no reasonable juror could disagree that the police could have reasonably believed that Spencer had robbed Reed Byrd, based on Fean-da Wilson’s knowledge of Spencer’s pager number, combined with her statement that the owner of the pager participated in taking Byrd’s coat by force.

In Beck v. Ohio, the Supreme Court held that probable cause exists when the police have “reasonably trustworthy information [that is] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense” based on “the facts and circumstances within [the police’s] knowledge” at the moment in question. 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). No reasonable juror could disagree that the evidence supplied by Wilson made it reasonable to believe that Spencer had committed robbery in connection with the forceful theft of Byrd’s coat, thus supplying probable cause to arrest Spencer on felony charges on April 28 before the lineup. Wilson told the police in her early-morning April 28 statement that the night before she saw two men approach Byrd’s car on either side and take his coat by force. Wilson saw the man on the driver’s side of Byrd’s car “open the driver’s door and grab [Byrd] and grabbed his black jacket and his red/white/blue shirt off [of] him.” Wilson said that both men then tried to “grab” Byrd “out of his car.”

Wilson’s eye witness statement is trustworthy information justifying a reasonable belief that these two men robbed Byrd. See Beck, 379 U.S. at 91, 85 S.Ct. 223 (trustworthy information creates probable cause); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir.1999) (holding that firsthand observations are entitled to a presumption of reliability and veracity). One of the men grabbed Byrd’s jacket, thereby depriving Byrd of his property by force. Both men laid their hands on Byrd to remove him from the car, thereby committing robbery.

In addition, the police also had probable cause to believe that Spencer was one of these two robbers, based on Wilson’s knowledge of Spencer’s pager number. Wilson told police that the robber who approached the driver’s side of Byrd’s car had “been in the restaurant and gave me his phone number, it was 232-0235 or 6235.” It is uncontested that the pager number belonged to Spencer and that the number led the police directly to Spencer. Based on these facts, the police had probable cause to arrest Spencer for robbing Reed Byrd of his coat.

Moreover, other signed witness statements in the record available to Investigator Pearson around the time of the arrest — -for example, Jmo Bracey’s and John Anderson’s statements on April 28 — do not materially disagree with Wilson’s April 28 witness statement and thus did not undermine the probable cause to arrest Spencer. To the contrary, Bracey’s and Anderson’s accounts of the robbery and shooting agree with Wilson’s account in some important respects; for instance, both Bra-cey and Wilson said that one of the gunman’s accomplices had a dark complexion. Wilson said the first accomplice looked 20 to 25 years old; Bracey’s estimate was exactly the same. Wilson said the first accomplice was 5'4" to 5'5" and weighed 170 pounds; Bracey’s similar (but slightly different) recollection was 5'6" and 150 pounds. Anderson, also, similarly remembered one of the accomplices as being 5'7" tall and weighing 160 pounds. A line-byline comparison of the three accounts is not necessary. The three accounts are not identical, but their differences are minor and are of the sort to be expected when different eye witnesses recollect the same event. Overall, the accounts resemble each other adequately to justify a reasonable officer’s belief in Wilson’s account in light of Anderson’s and Bracey’s accounts, and Spencer does not argue that inconsistencies within Wilson’s statement undercut her credibility such that a reasonable juror could find that there was no probable cause to justify Spencer’s arrest.

B.

Moreover, the evidence that emerged after the arrest, such as statements by witnesses Bracey and McGlory, Investigator Pearson’s doubts about Wilson’s credibility, and the alleged suggestiveness of the police line-up, do not aid Spencer’s argument that probable cause did not support his arrest. This post-arrest evidence does not show that probable cause was lacking on April 28, when the police arrested Spencer. The Supreme Court has held that probable cause determinations must be evaluated according to the information the police knew at the moment of the challenged conduct, not information learned for the first time afterwards. See Beck, 379 U.S. at 91, 85 S.Ct. 223. The statements that Bracey and McGlory made to the police after April 28, Investigator Pearson’s post-arrest doubts about Wilson’s credibility, and the line-up are therefore irrelevant to the probable cause issue here, because they occurred after Spencer had already been arrested.

Also regarding post-arrest evidence, Spencer further argues that the police had a duty to release him from jail the moment that new, exculpatory evidence came to light. When subsequent developments disprove the correctness of a previous police determination that probable cause exists, the argument goes, the police no longer have justification under the Fourth Amendment to continue the incarceration, and must release the suspect. Spencer cites no authority articulating this principle as a Fourth Amendment obligation. It lacks support in this circuit’s case law. Nor does Spencer offer any rationale from cases or other authority that would warrant a court-imposed requirement on police to release suspects the moment sufficiently exculpatory evidence emerges.

We note that policy does not support such a new development in the law. Such a rule would give investigators the responsibility to reevaluate probable cause constantly with every additional witness interview and scrap of evidence collected. Moreover, as investigations progress, the strength of evidence against a suspect may frequently change. Some released suspects would be rearrested when further inculpatory evidence emerged and showed that probable cause existed after all. And in lengthy, close cases these suspects might be re-released, and then re-rearrested, and so on.²

C.

The district court also properly-granted summary judgment to the officers as to Spencer’s claim for malicious prosecution. With regard to that claim, Spencer has the problem of the judicial determination of probable cause following the evidentiary preliminary hearing. While that determination has no preclusive effect if there is evidence that the claim of malicious prosecution is based on a police officer’s supplying false information to establish probable cause, Hinchman v. Moore, 312 F.3d 198, 202-03 (6th Cir.2002), there is no evidence in this record that Investigator Pearson or the county prosecutor or anyone else supplied the magistrate judge at that hearing with false information to establish probable cause. To the contrary, the transcript of the. preliminary examination in the record shows that the only defense argument made was the alleged insufficiency of the evidence to support the charges, and that argument did not rely on any allegation that false information had been supplied.

Because Spencer has not shown that the state judge relied on false information to determine that probable cause existed to bind Spencer over for trial, Spencer is precluded from relitigating the matter on a theory of malicious prosecution in this § 1983 suit. See, e.g., Buttino v. City of Hamtramck, 87 Fed.Appx. 499, 502-05 (6th Cir.2004).

D.

The conclusion that Spencer’s arrest was supported by probable cause also requires affirmance of the district court’s grant of summary judgment in favor of the City as to Spencer’s suit. Since the police had probable cause to arrest Spencer, the officers did not commit the constitutional wrong that Spencer’s suit alleges. Consequently, the City of Detroit cannot be held liable under § 1983 for police conduct that inflicts no constitutional injury. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”).

The grant of summary judgment to the City as to Spencer’s suit was proper.

III.

The district court also properly granted summary judgment as to Peet’s suit against the officers. First, Peet only appeals the district court order dismissing the complaint against Pearson. Peet does not challenge the district court order dismissing the complaint against Officer Amos, and we do not address whether a reasonable juror could find that Officer Amos arrested Peet without probable cause. Second, the record does not reflect that Pearson participated in the arrest of Peet. His deposition says that he did not, his progress notes do not mention it, and we are directed to no contrary testimony. As a result, we do not need to engage in speculation as to why Officer Amos arrested Peet or what role Pearson might have played. Finally, for the reasons above regarding Spencer’s claim for malicious prosecution, it was proper for the district court to grant summary judgment with respect to Peet’s malicious prosecution claim.

The district court also properly granted summary judgment to the City as to Peet’s claim for municipal liability, because Peet has not produced sufficient evidence tending to prove that Detroit tolerated a custom of federal rights violations that could have caused Peet to be arrested without probable cause. “To prevail in a § 1983 suit against a municipality, a plaintiff must show that the alleged federal right violation occurred because of a municipal policy or custom.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.2005).

Peet argues in his brief that the evidence creates a genuine issue of material fact about whether Detroit has a “custom” of “intimidating witnesses, falsely accusing'arresting witnesses during police investigations, and retaliating against citizens who do not support the department in its coercive activities.” Peet also argues in his brief that “the evidence presented in this case shows a failure to train and supervise” Detroit police officers. Thus, in this court Peet relies on two municipal-liability theories: first, custom; and second, failure to train. Ultimately, Peet has supplied too little Rule 56 evidence to create a genuine issue of material fact regarding the custom theory, and he raises the failure-to-train theory for the first time on appeal.

A.

Peet has presented insufficient Rule 56 evidence to create a trial-worthy dispute over whether Detroit has a custom of tolerating federal rights violations. At most, Peet has presented admissible record testimony that he, Darryl Williams, and Julian Latham were incarcerated and coerced in violation of their constitutional rights. But no reasonable juror could find on the basis of three discrete incidents that a city-wide policy or custom of unconstitutional treatment of witnesses was in place.

Peet cites the following evidence to establish a policy or custom of arresting witnesses without probable cause. Darryl Williams testified that the police arrested and locked him up without charges so that they could question him about the shooting at Coney Island. Williams also stated that the police directed him to provide the testimony they “wanted to hear” or he would be held longer.

Julian Latham similarly testified that he was arrested for questioning and that the police “coerce[d] me to say that” Peet and Spencer committed the crimes at the restaurant. Latham said that because the police disliked his testimony exonerating the plaintiffs the police locked him up and held him for three days, threatening to confine him until he told the “truth” that Peet and Spencer were guilty. Latham said that Investigator Pearson threatened to charge him with murder after he refused to change his story.

Bracey testified similarly, but solely as the result of admittedly leading questions by counsel for the plaintiffs to which opposing counsel objected repeatedly. Consequently, Bracey’s testimony to this effect is inadmissible and will not be considered.³

All told, the plaintiffs have produced only the arrests of Peet, Williams, and Latham as admissible evidence of a citywide custom of arresting witnesses without probable cause. But that is not enough to create a genuine issue of material fact. A custom or policy must be shown by “a clear and persistent pattern,” and three discrete instances in one investigation is simply not enough to reasonably draw such a conclusion. See Thomas, 398 F.3d at 432. Just as this court held in Thomas that no reasonable juror could “infer a municipal-wide policy based solely on one instance of potential misconduct,” id, no reasonable juror could infer such a custom or policy based on a mere three instances that are limited to one police investigation.

B.

In his brief, Peet argues that the City is liable for officers’ constitutional violations against him because the City failed to train its officers adequately. Peet, however, neglected to raise this argument in the district court. We decline to consider Peet’s failure-to-train argument for the first time on appeal. See Saylor v. United States, 315 F.3d 664, 669 (6th Cir.2003).

The grant of summary judgment to the City as to Peet’s claim for municipal liability was proper.

IV.

Finally, Peet and Spencer argue that the City is liable for subornation of perjury under the Due Process Clause, based on the rule of Sperle v. Michigan Department of Corrections, 297 F.3d 483, 491 (6th Cir.2002). But Sperle does not permit a claim for subornation of perjury on this record. Sperle permitted recovery for government actions that increase the risk of injury to the plaintiffs from private parties. See id. Sperle has no application to this case. There is no risk of injury from private parties to speak of here that could have resulted from the defendants’ alleged subornation of perjury- — at least none pointed out by Peet and Spencer in their briefs. Consequently, the plaintiffs’ argument based on Sperle has no merit.

No supportable basis has been presented for reversing the grant of summary judgment to the City with respect to Peet’s and Spencer’s subornation of perjury claim.

V.

For the foregoing reasons, the judgment of the district court is affirmed.

1 . Jmo Bracey was deposed on September 1, 2004, in connection with this civil suit. Bra-cey said that after he gave his first statement to the police, they locked him up and told him that if he did not give them information they would hold him. Bracey asserted in his deposition that after he told the police that Peet and Spencer were innocent, Investigator Pearson locked him up “because they told me I was lying. They thought I was holding evidence, lying to them.” This line of questioning in Bracey's deposition regarding the police’s alleged threats against him was composed almost entirely of leading questions by counsel for the plaintiffs. Opposing counsel objected repeatedly, but counsel for the plaintiffs retorted, "I can lead any way I want,” and, "Go ahead,” get a protective order. Counsel for the plaintiffs said to opposing counsel, “You can have a continuing objection on leading, how is that?”

In a deposition taken for this civil suit, Darryl Williams, a witness to the incident at the Coney Island restaurant, testified that the police arrested and locked him up without charges so that they could question him about the incident at Coney Island. Williams also stated that the police directed him to provide the testimony they "wanted to hear" or he would be held longer. Julian Latham, another witness, similarly testified in his deposition that he was arrested as a witness and that the police "coerce[d] me to say that” Peet and Spencer committed the crimes at the Coney Island. Latham said that because the police disliked his testimony exonerating the plaintiffs, the police locked him up and held him for three days, threatening to confine him until he told the "truth" that Peet and Spencer were guilty. Latham said that Investigator Pearson threatened to charge him with murder after he refused to change his story.

2 . The dissent argues that authorities violated Spencer's and Peet’s constitutional rights by filing a misleading request for a warrant. In their complaints, however, Spencer and Peet do not raise the dissent’s theory that deficiencies in the warrant request amounted to an unconstitutional arrest. Moreover, the district court certainly did not think that Spencer and Peet were raising the dissent's theory, presumably because (to the extent that Spencer and Peet raised the theory at all below) they mentioned the discrepancies in the warrant request to prove that officers lacked probable cause for the initial arrest.

Assuming that the argument is properly before us, the dissent's theory has significant problems. The first two problems are temporal. First, the dissent relies on information that Pearson obtained after he submitted the warrant request to suggest that Pearson always doubted whether probable cause existed. The evidence, however, shows that Pearson submitted the warrant request on the day after the murder, when signs suggested Spencer and Peet’s culpability, and the record does not show that authorities questioned their case after the initial arrest but before authorities submitted the warrant request. The dissent points to Pearson's deposition statement that he “might have had doubts” about Wilson’s truthfulness before the warrant was signed, but even if Pearson had doubts before the warrant was signed, Pearson's statement does not indicate that those doubts existed before the warrant request was submitted. Second, the dissent faults the investigators for mentioning Wilson’s eyewitness identification in their warrant request. While it is true that Wilson identified Spencer and Peet after the initial arrests, her eyewitness identification undermines Spencer’s and Peet’s claim that there was no probable cause at the time that Pearson submitted the warrant request. In essence, the dissent faults authorities for failing to include post-warrant exculpatory evidence but then faults authorities for including post-arrest incriminating evidence. In this case, there was probable cause at the time of the initial arrest, and the evidence after the arrest but before authorities submitted the warrant request did not clearly exonerate Spencer and Peet. Third, the dissent demands a level of perfection that would be difficult for most police departments to meet. Undoubtedly, the mag-istrale judge would have benefitted from a more precise warrant request that clearly delineated what each witness would say and differences between similarly looking cars (assuming that the witnesses could provide consistent and clear descriptions in a situation like this one). Such precision, where there is probable cause to justify an arrest, is not a constitutional requirement.

3 . Peet also points to other evidence that we may not consider. For instance, he alleges that in proceedings in a different case in federal district court in Michigan, a Detroit police sergeant admitted that a custom, policy, and practice of detaining all witnesses exists in Detroit. In particular, Peet cites Taylor v. City of Detroit, 368 F.Supp.2d 676, 692 (E.D.Mich.2005), to establish this fact. The district court opinion in Taylor does not demonstrate a policy. First, Taylor itself held only that a genuine issue of material fact exists regarding Detroit's alleged custom of arresting witnesses without probable cause. See id. Taylor did not hold that such a custom actually exists; that issue remains to be decided at a later trial. Second, the Taylor court’s holding that a genuine issue of material fact existed in that case was record-specific and may not be automatically imposed on other district courts or this court. Since the evidence on which Taylor’s denial of summary judgment in favor of the defense is premised is not before this court, Taylor has no relevance to the "custom” issue in this appeal. Third, while Peet had the district court opinion admitted into evidence, he did not obtain admission of the evidence upon which the district court relied. Finally, the plaintiffs point to a consent judgment entered into by the City and the U.S. Department of Justice. The consent judgment is not part of the record in this case.