No Probable Cause by Association: Sixth Circuit Limits Early Qualified Immunity Dismissals and Rejects Extra‑Record Evidence at Rule 12

Case: Andrew Evans v. Mark Gordon, et al. (Nos. 24-2066/2094, 6th Cir., Oct. 20, 2025) — Not Recommended for Publication

Introduction

This interlocutory appeal from the Eastern District of Michigan concerns two strands of constitutional litigation that regularly intersect with campus life: Fourth Amendment claims against university police for false arrest and malicious prosecution, and Fourteenth Amendment procedural due process claims against university administrators for emergency student suspensions. The plaintiffs, Andrew Evans and Ryan Geheb, were two of three Oakland University students who, according to the complaint, rode in a car while a third student pointed a brightly colored Nerf toy gun out the window and yelled “Give me all your money!” at passersby. University police arrested all three for armed robbery and later cited them for disturbing the peace; a dean immediately suspended them pending conduct charges.

Evans and Geheb sued individual campus police officers and administrators under 42 U.S.C. § 1983, alleging false arrest, malicious prosecution, and due process violations. The district court dismissed some counts but declined to grant qualified immunity to the officers and to the dean at the pleading stage. On appeal, the Sixth Circuit affirms the denial of qualified immunity and dismisses the students’ cross-appeal challenging the dismissal of a separate “rigged hearing” due process theory for lack of interlocutory jurisdiction.

Although unpublished, the opinion delivers three clear messages likely to reverberate in future cases: (1) “probable cause by association” is insufficient at the pleadings stage to defeat false-arrest and malicious-prosecution claims premised on aiding-and-abetting; (2) defendants cannot use curated, extra-pleading evidence to secure an early Rule 12 qualified-immunity dismissal; and (3) courts should be wary of deciding qualified immunity before discovery when the material facts are undeveloped, especially where the “clearly established” inquiry depends on the situation the officers confronted.

Summary of the Opinion

False arrest and malicious prosecution: Taking the complaint as true, the panel holds that plaintiffs plausibly alleged the absence of probable cause for their arrests and prosecutions. Under Michigan aiding-and-abetting principles, “mere presence” in the car and ownership of the Nerf toy do not plausibly establish knowing assistance in disorderly conduct or disturbing-the-peace violations. Consequently, the officers are not entitled to qualified immunity at the pleadings stage.
Qualified immunity and extra-record evidence: The court upholds the district court’s refusal to consider defense exhibits (such as interrogation excerpts and a 911 call transcript) attached to a Rule 12(b)(6) motion. Those materials were “curated evidence” appropriate for summary judgment, not a motion on the pleadings.
Clearly established law at Rule 12: At the complaint stage, with facts undeveloped, plaintiffs need not identify a near-identical case; the right to be free from arrest without probable cause is a canonical clearly established right, sufficient to allow the case to proceed.
Dean’s suspension decision: For the suspension-based due process claim, as with the police claims, the panel finds the record too undeveloped to resolve qualified immunity in defendants’ favor at Rule 12 and affirms the denial.
Cross-appeal dismissed: The court dismisses plaintiffs’ cross-appeal (challenging dismissal of a “rigged hearing” due process theory) for lack of interlocutory jurisdiction; that issue is distinct from qualified immunity.

Analysis

Precedents Cited and Their Role

Franz v. Oxford Community School District, 132 F.4th 447 (6th Cir. 2025): Establishes that, on a motion to dismiss, courts accept the complaint’s factual allegations as true. This frames the analysis in plaintiffs’ favor at Rule 12.
Mitchell v. Forsyth, 472 U.S. 511 (1985): Authorizes interlocutory appeals from denials of qualified immunity. The panel relies on Mitchell for appellate jurisdiction.
Bey v. Falk, 946 F.3d 304 (6th Cir. 2019): Limits interlocutory review to questions of law and confirms de novo review of those legal questions.
Sterling Hotels, LLC v. McKay, 71 F.4th 463 (6th Cir. 2023): Equates a refusal to grant qualified immunity with a denial for appellate purposes.
Martinez v. Wayne County, 142 F.4th 828 (6th Cir. 2025): Restates that plaintiffs must plausibly allege a violation of clearly established rights to overcome qualified immunity.
Hartman v. Thompson, 931 F.3d 471 (6th Cir. 2019): Clarifies the “any-crime” rule for false arrest: probable cause to arrest for any offense will defeat the claim, not merely the charged offense. The panel applies this rule and still finds plaintiffs’ allegations sufficient.
Davis v. Lafler, 658 F.3d 525 (6th Cir. 2011): Explains Michigan aiding-and-abetting liability requires knowing assistance. This is pivotal: mere presence, driving, or ownership of a toy gun, without more, cannot establish probable cause to arrest as an aider or abettor.
Howell v. McCormick, 148 F.4th 834 (6th Cir. 2025): States that malicious prosecution requires absence of probable cause for the offense charged. Plaintiffs plausibly allege that here.
Blackwell v. Nocerini, 123 F.4th 479 (6th Cir. 2024): Warns against relying on extra-pleading, “curated” evidence at the motion-to-dismiss stage. The panel cites Blackwell in affirming the district court’s refusal to consider defendants’ exhibits.
Caraway v. CoreCivic of Tennessee, LLC, 98 F.4th 679 (6th Cir. 2024): Confirms district courts’ discretion not to consider materials outside the pleadings on a Rule 12 motion.
District of Columbia v. Wesby, 583 U.S. 48 (2018): Requires that the “clearly established” inquiry be tethered to the “situation [the officer] confronted.” The panel explains that without discovery, the precise “situation” remains unknown, making a fact-intensive QI decision premature.
Jones v. City of Elyria, 947 F.3d 905 (6th Cir. 2020): Recognizes the freedom from arrest without probable cause as a paradigmatic clearly established right. The panel leans on Jones to allow the case to proceed without exact fact-match precedent at Rule 12.
Salter v. City of Detroit, 133 F.4th 527 (6th Cir. 2025): Limits pendent appellate jurisdiction; the court cannot hear unrelated issues (e.g., the “rigged hearing” claim) in this interlocutory posture.

Legal Reasoning

1) Probable cause and aiding-and-abetting liability. The officers argued they had probable cause to arrest Evans and Geheb for aiding and abetting violations of campus and municipal ordinances (e.g., intimidation by toy gun on campus, conduct raising safety concerns). Under Michigan law, however, aiding-and-abetting requires a showing that the defendant knowingly assisted the principal’s crime. The complaint alleges the “prank” was spontaneous and unilateral; Evans and Geheb were “merely present in the car,” with Evans in the back seat and Geheb continuing to drive without stopping or slowing. Those allegations, accepted as true at Rule 12, plausibly negate knowing assistance. Thus:

False arrest: Because the “any-crime” rule still demands probable cause for at least one offense, and the complaint plausibly negates aiding-and-abetting probable cause, the false-arrest claim cannot be dismissed now.
Malicious prosecution: The claim likewise survives because it requires an absence of probable cause for the offense charged (here, the charged crimes), and plaintiffs plead that absence plausibly.

2) No extra-record “curated evidence” at Rule 12. Attempting to shore up probable cause, defendants attached interrogation excerpts and a 911 transcript to their 12(b)(6) motion. The district court declined to consider those materials, and the Sixth Circuit affirms. Citing Blackwell and Caraway, the panel emphasizes that such exhibits—better suited for summary judgment—cannot be used to contradict or supplement well-pleaded allegations on a motion to dismiss unless they fall within narrow exceptions (e.g., documents integral to and explicitly referenced in the complaint, and whose authenticity is undisputed). Defendants’ exhibit-driven approach could not convert a pleading-stage dismissal into a fact dispute resolved in defendants’ favor.

3) The clearly established prong at the pleading stage. The officers argued that plaintiffs had not identified case law with sufficiently similar facts demonstrating that the officers’ conduct was unlawful. The panel responds that, at this early stage, the relevant “situation” the officers confronted is not yet concretely defined (per Wesby). Until discovery clarifies those facts, it is enough that the right to be free from arrest without probable cause is a classic example of a clearly established right (citing Jones). In effect, the court signals that demanding a granular factual match before discovery risks collapsing the Rule 12 standard into a merits determination.

4) Due process claim against the dean for immediate suspensions. The district court denied qualified immunity to Dean Michael Wadsworth on the suspension-based due process claim, and the Sixth Circuit affirms. While not resolving what process was due or whether exigent circumstances justified the immediate suspensions, the panel remarks that the relevant facts are undeveloped and underscores a broader practice point: motions invoking qualified immunity are often better decided after discovery, not before, because the immunity analysis can be intensely fact-dependent.

5) Appellate jurisdiction and the cross-appeal. The court has interlocutory jurisdiction to review the denial (or refusal to grant) qualified immunity (Mitchell; Sterling Hotels). But it lacks jurisdiction to review dismissal of the separate “rigged hearing” due process claim, which is distinct from the qualified immunity rulings and therefore outside pendent appellate jurisdiction (Salter).

Impact

For law enforcement (including campus police):
- Individualized probable cause remains essential. Presence at the scene, driving a car in which someone else misbehaves, or owning an item employed by another does not, without more, create probable cause to arrest for aiding and abetting. Officers should seek facts establishing knowing assistance (planning, encouragement, coordination, or other affirmative acts) before making accessory arrests.
- Avoid relying on “curated” evidence to win at Rule 12. Interrogation snippets or 911 recordings cannot displace a complaint’s plausible allegations on a motion to dismiss. Officers and counsel should consider waiting for summary judgment if the defense turns on context beyond the pleadings.
For universities and administrators:
- Emergency suspensions raise fact-bound due process questions. Whether immediate suspension without a pre-deprivation hearing is constitutional can depend on exigency, notice, and promptness/adequacy of post-deprivation process. Seeking qualified immunity at Rule 12 may fail where facts are contested or incomplete.
- Internal discipline does not immunize arrests. Administrative measures do not cure Fourth Amendment defects. Parallel criminal citations and conduct-code enforcement remain analytically distinct under § 1983.
For litigators and district courts:
- Timing of qualified immunity motions matters. The panel’s observation that early QI motions “usually waste the time of the parties and courts alike” signals a preference—at least where facts are undeveloped—for litigating immunity at summary judgment.
- Pleading-stage “clearly established” showing is calibrated to uncertainty. Plaintiffs need not present a near-identical precedent at Rule 12 when the operative facts remain unknown; instead, bedrock rights (like freedom from arrest without probable cause) can suffice to move beyond the pleadings.
For students and the campus community:
- Arrests cannot rest on guilt by association. Being in the car or owning a toy the prankster used does not, by itself, justify arrest.
- Disciplinary procedures are reviewable under due process. Immediate suspensions and subsequent proceedings can be tested in court; administrators’ immunity may turn on the specific process afforded and the urgency of the situation.

Complex Concepts Simplified

Qualified Immunity (QI): A defense shielding officials from personal liability unless they violate a constitutional right that was clearly established at the time. At the pleading stage, courts assume the complaint’s facts are true. If those facts plausibly describe a violation of a well-known right, the case usually proceeds to discovery before QI is revisited.
Probable Cause: Reasonable grounds to believe a person committed a crime. For false arrest, any valid probable cause for any offense defeats the claim. For malicious prosecution, the focus is probable cause for the offense actually charged.
Aiding and Abetting (Michigan): Liability for intentionally assisting someone else to commit a crime. It requires knowing participation—not just being nearby or passively present.
Rule 12(b)(6) vs. Summary Judgment: On a motion to dismiss (Rule 12), courts consider only the complaint (and certain limited, undisputedly authentic materials). Summary judgment (Rule 56) comes later, after discovery, and considers evidence to decide whether any genuine dispute of material fact exists.
Interlocutory Appeal of QI Denial: Normally, appeals wait for a final judgment. But a denial of qualified immunity can be appealed immediately, though only legal questions (not factual disputes) are reviewable at that stage.
Due Process and Emergency Suspension: The Constitution requires fair procedures before the state deprives someone of a protected interest. In emergencies, a brief pre-deprivation process may be excused if there is a prompt and fair post-deprivation hearing, but whether the process was adequate is highly fact-specific.

Conclusion

In this unpublished decision, the Sixth Circuit underscores three practical rules. First, probable cause cannot be imputed by association: being present in a vehicle or owning an item used by another is not, without more, probable cause to arrest as an aider and abettor. Second, defendants cannot convert a motion to dismiss into a fact-driven dismissal by attaching “curated” exhibits that contradict or supplement the complaint. Third, courts should be cautious in resolving qualified immunity without discovery when the “clearly established” inquiry hinges on an as-yet-uncertain factual scenario; at the pleading stage, canonical rights like the freedom from arrest without probable cause can carry the day for plaintiffs.

For campus police and administrators, the opinion serves as a reminder that individualized probable cause and carefully documented procedural safeguards are essential. For litigants, it clarifies that early attempts to win on qualified immunity—especially with extra-record materials—are likely to falter. Although not binding precedent, the Sixth Circuit’s reasoning will be persuasive in similar cases and signals a measured, fact-sensitive approach to qualified immunity at the Rule 12 stage.