Opinion
Nos. 104257, 104258.
August 2, 1996.
Interlocutory Appeal.
Leave to Appeal Denied August 2, 1996:
reported below: 211 Mich. App. 375.
I would grant leave to appeal
I would grant leave to appeal.
I
Plaintiff filed this action against the City of Detroit and police officers and officials. The complaint alleged false arrest, false imprisonment, malicious prosecutions, violations of federal constitutional rights under 42 U.S.C. § 1983, and a claim under 42 U.S.C. § 1985 for an alleged conspiracy to interfere with his constitutional rights.
In Detroit in the late 1970s through 1980, there were a number of murders of prostitutes. Defendant Hart was the chief of police. The murders were investigated by a special police unit headed by defendant Ridling. Members of the unit reported to defendant Deputy Chief Hale.
Plaintiff Payton was arrested without a warrant for a sex crime. He was arrested for the prostitute murders after being detained and interrogated for the other sex crime. During the interrogations without counsel, he confessed to several of the prostitute murders. His confessions were general in nature and had significant factual errors. Another person confessed to the crimes and that confession contained greater specificity and was accompanied by significant physical evidence including a murder weapon. The plaintiff was nevertheless detained for some time after the other person confessed and the physical evidence was located.
The jury found for the plaintiff against each defendant. The Court of Appeals reversed.
II
The malicious prosecution claim against Ridling and Hale turns on whether their failure to disclose certain information to the prosecution would have affected the prosecutor's decision to proceed with the case. The Court of Appeals held that the trial court erred in denying the defendants' motion for a directed verdict with regard to these claims. A directed verdict would have been justified only if no rational juror could have believed that disclosure of the information concealed by defendants would have made a difference in the prosecutor's decision to continue the prosecution.
Jurors could reasonably conclude, however, that disclosure of information such as:
• Ridling was feeding information to Payton that appeared in his "confession" and later turned out to be factually in error,
• physical evidence linked the other person to the murders, • Payton was threatened with a rape charge by one of the officer's girlfriends if he did not confess to the murders, would have affected the prosecutor's decision to continue the prosecution. Such a conclusion seems particularly reasonable because the basis for the prosecution was the tainted confessions, and, when the first two of the three points adverted to above were disclosed to the prosecutor, the charges were dismissed.
III
The Court of Appeals published opinion sets forth a troubling limitation on malicious prosecution actions. The Court of Appeals held that "`"the only situation in which an action for malicious prosecution would properly lie is where a police officer knowingly swears to false facts in a complaint, without which there is no probable cause."'"
211 Mich. App. 375, 395 (1995), quoting King v Arbic, 159 Mich. App. 452, 466 (1987).
A malicious prosecution action can be based on instigation or continuation of prosecution. Where the claim is based on continuation of the prosecution, the police do not swear to anything. The investigation and preparation for trial simply continues.
Liability may arise, however, even though the police did not knowingly swear to a falsehood, when the police detain, interrogate and coerce a "confession" from an accused.
IV
The use of a "reverse writ" to detain Payton without probable cause provides the policy or general practice that subjects defendants City of Detroit and Chief Hart to liability. The reverse writ facilitated Ridling and Hale's detention of Payton and their other conduct in bringing about what the jury found to have been a malicious prosecution. The continuation of Payton's detention denied him constitutional protections that this Court relied on in Casey and was coercive resulting in the prosecution of Payton.
In People v Casey, 411 Mich. 179 (1981), this Court prohibited reverse writs because they authorize the police to hold a defendant in the absence of probable cause sufficient to obtain a warrant.
See n 2.
The Court of Appeals relied on Albright v Oliver, 510 U.S. 266 (1994), in denying § 1983 liability for prosecution without probable cause. That case does not address liability for denial of Fourth Amendment protections through the use of the reverse writ. Albright dealt only with claims based on substantive due process, not other explicit protections such as the Fourth Amendment.
BOYLE and KELLY, JJ.
We would grant reconsideration and, on reconsideration, would grant leave to appeal.
I concur with Justice LEVIN and would grant leave to appeal.
Reconsideration denied March 25, 1997.