Prosecutorial Liability for Advising on Unconstitutional Show‑Ups: Ramsey v. Rivard (Gaertner) and the Boundaries of Absolute Immunity

I. Introduction

This commentary examines the Sixth Circuit’s unpublished decision in Ramsey v. Rivard, Case No. 24‑2098 (Dec. 4, 2025), as it concerns defendant‑appellee Mark J. Gaertner, the Saginaw County Chief Assistant Prosecutor. The opinion lies at the intersection of two powerful strands of constitutional doctrine:

The due process and fair‑trial limits on eyewitness identification procedures, particularly show‑ups; and
The scope of prosecutorial immunity—absolute versus qualified—when prosecutors advise police officers before charges are filed.

Dominique Ramsey and Travis Sammons spent over five years incarcerated after being convicted of conspiracy to commit murder, in a case that turned largely on a highly problematic show‑up identification of Sammons. Michigan appellate courts later found the identification unduly suggestive and unreliable, vacated the convictions, and the prosecution ultimately dismissed the case. The plaintiffs then brought a civil rights action under 42 U.S.C. § 1983 against various law enforcement officials and prosecutor Gaertner.

The key issues on appeal were:

Whether Gaertner was entitled to qualified immunity for advising a detective to proceed with a show‑up identification procedure later deemed unconstitutional; and
Whether Gaertner was entitled to absolute immunity for his conduct in initiating and supporting the prosecution, including seeking an arrest warrant and eliciting testimony at a preliminary examination (probable cause hearing).

The Sixth Circuit bifurcated these questions along the now‑classic functional line: advice to the police before probable cause is treated as investigative; courtroom and charging functions are treated as advocative. The court:

Affirmed the district court’s ruling that Gaertner enjoys absolute immunity from the plaintiffs’ malicious prosecution claim; but
Reversed the grant of qualified immunity on the plaintiffs’ due process claim and remanded for further proceedings.

In doing so, the panel clarified an important rule: a prosecutor who, before probable cause exists, advises or approves a plainly unconstitutional show‑up identification procedure may be personally liable under § 1983, without the shield of qualified immunity, where the right at issue is clearly established and the advice can be found to have contributed to the ensuing constitutional violation at trial.

II. Factual and Procedural Background

A. The Underlying Homicide and Identification

On June 21, 2015, Humberto Casas Jr. was shot and killed in Saginaw, Michigan. Two witnesses—Felicia Little and her sixteen‑year‑old son, DyJuan Jones—observed the shooting. Jones described:

A bald Black man in a white shirt and black pants as the shooter; and
A second Black man, the driver, with a long beard, also in a white shirt, weighing approximately 280–320 pounds, fleeing the scene in a light grey Jeep.

Within 10–20 minutes, police stopped a silver Jeep driven by two Black men in white shirts—Dominique Ramsey and Travis Sammons. Neither fully matched the physical description; nonetheless, both were taken to the Saginaw Police Department as possible suspects and detained.

Little and Jones were brought to the station for follow‑up interviews. With both witnesses and suspects present, detectives considered using a show‑up identification—having the witnesses view the suspects singly rather than in a lineup or photo array.

B. The Gaertner–Rivard Phone Call

Before conducting the show‑up, Michigan State Police Sergeant David Rivard telephoned Chief Assistant Prosecutor Gaertner to discuss the identification plan. Rivard explained that:

A show‑up was the “most reasonable” option; officers did not want to release Ramsey and Sammons to arrange a photo lineup; and
They lacked the resources to assemble a proper live lineup with fillers (other similar‑looking individuals).

Gaertner responded by warning that the procedure should not be “overly suggestive,” asking whether Ramsey and Sammons would appear to the witnesses as criminal suspects—e.g., handcuffed or in jail clothes. Rivard reassured him that there was "no indication that they were under arrest for anything," and that he planned merely to have Jones and Little look through the interview room door windows and ask only if and how they recognized the men, to avoid suggestion of involvement.

On that basis, Gaertner approved the plan. Rivard proceeded with the show‑up. According to Rivard, Jones:

Did not recognize Ramsey; but
Did identify Sammons as the shooter.

Yet at the preliminary examination and at trial, Jones testified that he never identified or recognized Sammons, directly undermining Rivard’s account of the show‑up.

C. Criminal Proceedings and Vacatur of Convictions

On January 27, 2016, a jury convicted Ramsey and Sammons of conspiracy to commit murder but acquitted them of all other charges. Post‑trial history was complex:

The trial judge initially granted Ramsey a directed verdict and vacated his conviction, but the state successfully appealed that ruling.
Sammons appealed his conviction. The Michigan Supreme Court, in People v. Sammons, 949 N.W.2d 36 (Mich. 2020), held that the identification procedure was unduly suggestive and unreliable, vacated his conviction, and remanded for a new trial.
Ramsey’s case was remanded on the same grounds.
The prosecutor ultimately entered a nolle prosequi—a dismissal of the charges—citing insufficient evidence to secure a conviction.

Ramsey and Sammons were released on October 30, 2020, after more than five years in custody.

D. The Civil Rights Litigation

Ramsey and Sammons then filed a § 1983 action against:

Sergeant Rivard and his supervisor (law enforcement officers);
Gaertner (in his individual capacity); and
Saginaw County.

As to Gaertner, they alleged:

Due process and fair trial violations (Fourteenth and Sixth Amendments) based on Gaertner’s approval and authorization of the unconstitutional show‑up; and
Malicious prosecution, premised on his role in allegedly utilizing “deliberately and knowingly fabricated evidence” related to the supposed identification of Sammons during the criminal prosecution.

Gaertner moved for summary judgment, asserting:

Qualified immunity for his pre‑charging advice to Rivard; and
Absolute immunity for his role in initiating and supporting the prosecution, including the preliminary examination.

The district court agreed on both counts, entered summary judgment in Gaertner’s favor, and dismissed the case. The plaintiffs appealed. A prior Sixth Circuit decision, Ramsey v. Rivard, 110 F.4th 860 (6th Cir. 2024) (“Ramsey I”), addressed similar claims against Sergeant Rivard and forms the doctrinal backdrop here.

III. Summary of the Sixth Circuit’s Opinion

Reviewing de novo the district court’s grant of summary judgment, the Sixth Circuit held:

No absolute immunity for pre‑charge advice: Gaertner’s phone call advising Rivard about the show‑up occurred before probable cause was established and before Gaertner acted as an advocate. Under Supreme Court and circuit precedent, legal advice to police in this phase receives only qualified immunity, not absolute immunity.
No qualified immunity for the due process claim: The court held that:
- The right to be free from unnecessarily suggestive identification procedures that create a serious risk of misidentification was clearly established since at least Stovall v. Denno, 388 U.S. 293 (1967) and consistently recognized in Sixth Circuit law (e.g., Gregory v. City of Louisville).
- As in Ramsey I, a reasonable jury could conclude that the show‑up was unconstitutional and that the resulting identification was unreliable and used at trial.
- Gaertner’s approval and authorization of the show‑up could be found to have caused or contributed to the violation.
Accordingly, the court reversed the grant of qualified immunity on the due process claim.
Absolute immunity for prosecutorial conduct: As to the malicious prosecution claim, Gaertner’s conduct in:
- Recommending issuance of an arrest warrant; and
- Eliciting testimony at the preliminary probable cause hearing
was deemed “intimately associated with the judicial phase” of the criminal process. That conduct was protected by absolute prosecutorial immunity, even if the testimony involved the allegedly false identification. The court therefore affirmed summary judgment on the malicious prosecution claim.

The case is remanded so that the due process/fair trial claim against Gaertner, based solely on his pre‑probable‑cause advice concerning the show‑up, may proceed.

IV. Detailed Analysis

A. Prosecutorial Immunity: The Functional Approach

The Supreme Court and Sixth Circuit employ a “functional approach” to prosecutorial immunity. The label “prosecutor” is not dispositive; what matters is the nature of the function being performed, not the identity of the actor. The key precedents include:

Buckley v. Fitzsimmons, 509 U.S. 259 (1993): Prosecutors enjoy absolute immunity for advocative functions—initiating prosecution and presenting the state’s case—but only qualified immunity when performing “investigative functions normally performed by a detective or police officer.”
Burns v. Reed, 500 U.S. 478 (1991):
- Absolute immunity covers a prosecutor’s appearance in court in support of a warrant or during probable cause hearings.
- By contrast, giving legal advice to the police (e.g., advising they may use a certain interrogation technique) is entitled only to qualified immunity.
Watkins v. Healy, 986 F.3d 648 (6th Cir. 2021): A prosecutor acts as an investigator rather than advocate before probable cause surfaces; that conduct receives only qualified immunity.
Stockdale v. Helper, 979 F.3d 498 (6th Cir. 2020): Absolute immunity is granted “sparingly”; the official seeking it bears the burden to show that qualified immunity is insufficient.
Jackson v. City of Cleveland, 64 F.4th 736 (6th Cir. 2023): Courts must identify the specific “wrongful acts” a prosecutor allegedly committed and classify those acts by function—investigative versus advocative.

The Ramsey panel explicitly follows this framework. It distinguishes:

Gaertner’s phone call with Rivard (pre‑charge, investigative/legal advice to law enforcement); from
His conduct in recommending an arrest warrant and handling the preliminary examination (probable cause hearing), which are canonical prosecutorial acts intimately tied to the judicial process.

B. Qualified Immunity and Pre‑Charge Advice on the Show‑Up

1. No Absolute Immunity for Pre‑Probable‑Cause Advice

The court first confirms what Gaertner “rightly” does not contest: he is not entitled to absolute immunity for his conduct during the phone call with Rivard. This conclusion follows straightforwardly from:

The timing: the call occurred before Ramsey and Sammons were indicted and before probable cause was established; and
The function: Gaertner was advising police on investigative procedure, not advocating in court or making a charging decision.

Under Burns, Buckley, and Watkins, that type of function receives only qualified immunity. Thus the core question becomes whether Gaertner can prevail under the two‑prong qualified immunity test.

2. The Qualified Immunity Standard

A government official is entitled to qualified immunity unless:

The official’s conduct violated a constitutional or statutory right; and
The right was clearly established at the time of the conduct such that any reasonable official would have understood that what he was doing was unlawful.

This case turns on whether the plaintiffs have identified a clearly established right and whether Gaertner’s conduct could be found to have violated that right.

3. The Clearly Established Right: Freedom from Unduly Suggestive Identification Procedures

The plaintiffs invoked a well‑entrenched due process principle: criminal suspects have a right to be free from unnecessarily suggestive identification procedures that are conducive to irreparable misidentification.

Key precedents include:

Stovall v. Denno, 388 U.S. 293 (1967): The Supreme Court recognized that due process is violated where identification procedures are “so unnecessarily suggestive and conducive to irreparable mistaken identification” that their use offends fundamental fairness. The Court acknowledged that one‑on‑one show‑ups are “widely condemned,” though not per se unconstitutional; their permissibility depends on the totality of circumstances and any exigent need.
Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006): The Sixth Circuit expressly held that the right articulated in Stovall was “clearly established” by 1967; police officers and others may be liable under § 1983 for causing unconstitutional identifications through unduly suggestive procedures.
Gillispie v. Miami Township, 18 F.4th 909 (6th Cir. 2021): Reaffirmed that the right against unduly suggestive identification procedures is clearly established; officers can be held liable where they arrange or conduct such procedures.

The panel also cites its own prior decision in Ramsey I, which had already ruled that a jury could find this particular show‑up unconstitutional and its resulting identification unreliable under clearly established law.

In other words, there is nothing novel or unsettled about the right at stake. By 2015, it was crystal clear that arranging or approving a show‑up that is both unnecessarily suggestive and unnecessary (in the sense that less suggestive alternatives existed without compromising legitimate law enforcement needs) could violate due process.

4. Did Gaertner’s Advice Violate that Right?

Gaertner’s primary defense was factual: he argued that no actual identification resulted from the show‑up, and therefore the plaintiffs suffered no constitutional violation attributable to his conduct. The court rejected that line of reasoning for several reasons.

a. Ramsey I’s Analysis

In Ramsey I, concerning Sergeant Rivard:

The Sixth Circuit held that a jury could find this same show‑up “unduly suggestive and unnecessary,” and the “resulting identification” unreliable under clearly established law.
The court also held that Rivard could be found to have caused the constitutional harm by arranging the show‑up.

That prior analysis binds and informs the present case. The panel views the legal framework and factual predicate as essentially identical, except that the defendant is a prosecutor who approved the show‑up rather than the officer who physically conducted it.

b. Factual Dispute: Did the Show‑Up Produce an Identification Used at Trial?

The plaintiffs maintain that Rivard’s report reflected that Jones identified Sammons as the shooter during the show‑up, and that this supposed identification:

Was presented and relied upon in the criminal proceedings; and
Contributed to their convictions.

At the same time, they allege that certain parts of Rivard’s report were fabricated. But the critical point for summary judgment is that there exists a genuine dispute of material fact:

One view (supported by Rivard’s report) is that the show‑up did generate an identification of Sammons, later presented as evidence.
Another view (supported by Jones’s testimony) is that he never identified Sammons, raising the possibility of fabrication.

At the summary judgment stage, courts must draw all reasonable inferences in favor of the non‑moving party (here, the plaintiffs). The panel therefore cannot resolve this factual conflict in Gaertner’s favor.

c. Causation: Gaertner’s Advice as a “Moving Force”

The court frames the proper inquiry as whether a reasonable jury could find that Gaertner’s advice and approval of the show‑up contributed to the constitutional harm: the use of an impermissible identification leading to plaintiffs’ convictions.

Drawing on Gregory and the classic § 1983 causation language from Monroe v. Pape, 365 U.S. 167 (1961), the court notes that officials may be held liable for the “natural consequences” of their actions. Here:

Gaertner was informed that officers intended to use a show‑up because they did not want to release the suspects and lacked resources for a proper lineup.
He knew the show‑up was risky and admonished Rivard only that it not be “overly suggestive.”
He nonetheless approved the plan, giving legal sanction to a procedure that—according to later appellate rulings (including Sammons and Ramsey I)—was unduly suggestive and unnecessary.

A jury could thus conclude that:

Absent Gaertner’s approval, Rivard would not have conducted the show‑up in this form; or
The prosecution would not have relied on the resulting identification at trial.

Either way, Gaertner’s conduct can be viewed as a proximate cause of the due process violation.

d. Fabrication Allegations Do Not Break the Chain

Gaertner’s argument effectively implied that because the plaintiffs allege fabrication (i.e., that Rivard falsified aspects of the identification), there was no genuine constitutional harm caused by the show‑up; any harm stemmed solely from fabrication, for which Gaertner claims no responsibility.

The court rejects this reasoning on two levels:

Logical inconsistency with Ramsey I: If accepted, this argument would equally exonerate Rivard—because fabrication would eclipse any unconstitutional show‑up as the source of harm. But the court has already held in Ramsey I that Rivard is not entitled to qualified immunity for arranging the show‑up. The same factual and legal structure precludes such a result here.
No categorical bar: The presence of alleged fabrication does not, as a matter of law, negate the possibility that the show‑up produced an identification used at trial or that the show‑up itself was a constitutional violation. It simply creates a factual question for the jury.

Consequently, the court holds that a reasonable jury could find that Gaertner’s advice and approval of the show‑up violated clearly established due process rights. He is therefore not entitled to qualified immunity at this stage.

C. Absolute Immunity and the Malicious Prosecution Claim

1. The Alleged Wrongful Acts During Prosecution

The malicious prosecution claim focuses on Gaertner’s role in:

Recommending an arrest warrant; and
Eliciting testimony—including testimony about the supposed identification—at the preliminary probable cause hearing.

The plaintiffs argued that these prosecutorial actions were infected by the same unconstitutional show‑up that Gaertner had authorized, and thus should be viewed as a continuation of his improper investigative/ advisory conduct.

2. The Court’s Functional Classification

Drawing heavily on the functional approach and prior cases, the panel holds that these acts fall squarely within the protective sphere of absolute prosecutorial immunity.

Recommending and obtaining an arrest warrant, and presenting evidence to justify it, are core advocative functions, as recognized in Burns.
Conducting or participating in a probable cause hearing—selecting witnesses, eliciting their testimony, and questioning them—is likewise treated as an advocative judicial function.

The court cites:

Spurlock v. Thompson, 330 F.3d 791 (6th Cir. 2003): Prosecutors have absolute immunity for decisions about which witnesses to call and what questions to ask, even when they allegedly knowingly elicit false testimony.
Price v. Montgomery County, 72 F.4th 711 (6th Cir. 2023): Reiterates that absolute prosecutorial immunity has a “long reach” and applies even where the defendant was “genuinely wronged.”
Cooperrider v. Woods, 127 F.4th 1019 (6th Cir. 2025) (as quoted): The critical question is whether the prosecutor was functioning “in an enforcement role and acting as an advocate for the state in initiating and prosecuting judicial proceedings.”

The court emphasizes that its duty under Jackson is to identify the specific acts at issue and classify them by function—not to trace the downstream causal links back to earlier investigative advice. Here, the acts challenged in the malicious prosecution claim were quintessentially advocative.

3. The Plaintiffs’ “Continuing Wrong” Theory Rejected

The plaintiffs urged the court to view Gaertner’s prosecutorial acts as a byproduct—or continuation—of his earlier advisory misconduct during the phone call. In their view, his advice “drove forward the criminal case,” including the filing of charges and the continued detention.

The court rejects this theory for two reasons:

Functional segmentation: Under Supreme Court jurisprudence, the same individual may be acting in an investigative capacity at one moment and an advocative capacity at another. Absolute immunity attaches (or not) to particular acts, not to the prosecutor as a person or to an entire sequence of events. Once the relevant acts are classified as advocative and intimately associated with the judicial phase, absolute immunity applies—even if those acts flow from earlier misconduct.
Causation characterization: The panel notes that according to the plaintiffs’ own version of events, it was primarily Rivard’s alleged falsification of the identification, rather than the mere occurrence of the show‑up, that created probable cause. That further weakens any attempt to recast Gaertner’s prosecutorial actions as a mere extension of his investigatory advice.

Thus, Gaertner is absolutely immune from suit for:

His recommendation of an arrest warrant; and
His conduct in the preliminary examination and other aspects of initiating and maintaining the prosecution.

Because the malicious prosecution claim is tied to these prosecutorial functions, the Sixth Circuit affirms summary judgment for Gaertner on that claim.

D. Relationship to and Use of Precedents

1. Ramsey I and the “Same Show‑Up”

This opinion is tightly integrated with Ramsey I, decided one year earlier, which addressed similar claims against Sergeant Rivard. In Ramsey I, the court:

Analyzed this same show‑up under the Stovall framework;
Concluded that a reasonable jury could find it unduly suggestive and unnecessary; and
Held that Rivard could be liable under § 1983 for arranging it, rejecting his qualified immunity defense.

The present panel explicitly acknowledges that its analysis regarding the constitutionality of the show‑up and the clearly established nature of the right is parallel to Ramsey I. What changes is only:

The defendant (a prosecutor rather than a detective);
The functional role at the time (advisor vs direct arranger); and
The type of immunity asserted (absolute plus qualified vs qualified alone).

In this sense, Ramsey I provides both factual continuity and legal momentum: it makes it more difficult for Gaertner to reframe the show‑up as benign or ambiguous, and it aligns prosecutorial liability for advisory roles with investigative liability for officers who execute those procedures.

2. Stovall and the Eyewitness Identification Line

The opinion reaffirms the doctrinal lineage from Stovall through subsequent identification cases:

Stovall created the “unnecessarily suggestive and conducive to irreparable mistaken identification” standard and specifically critiqued show‑ups as “widely condemned.”
Later cases refined the analysis by incorporating reliability factors and considering the totality of the circumstances, but the basic due process constraint remained central.
By citing Gregory and Gillispie, the panel makes clear that these principles were fully entrenched in Sixth Circuit law well before the events in 2015.

This is important for the “clearly established” prong of qualified immunity. The court is saying: whatever nuance might exist around marginal identification cases, this was not such a case. It echoes the Michigan Supreme Court in Sammons, which found this show‑up unduly suggestive and unreliable.

3. Prosecutorial Immunity Cases: Buckley, Burns, Watkins, Stockdale, Jackson, Spurlock, Price, and Cooperrider

The opinion also consolidates the Sixth Circuit’s application of the Supreme Court’s functional immunity framework:

Prospective legal advice to police (as in the phone call to Rivard):
- Is subject only to qualified immunity (Burns; Buckley; Watkins);
- May expose prosecutors to liability when the underlying right is clearly established.
Core prosecutorial functions such as:
- Seeking and supporting arrest warrants (Burns);
- Presenting cases at probable cause hearings or trial; and
- Controlling witness selection and questioning (Spurlock)
are absolutely immune—even where false testimony is knowingly used (Spurlock; Price).

By citing Stockdale and Cooperrider, the panel also reiterates two important meta‑principles:

Absolute immunity is given sparingly, and prosecutors bear the burden to justify it.
The focus is always whether the prosecutor was functioning as an advocate for the state in judicial proceedings.

These precedents collectively anchor the court’s dual holding: investigative advice opens prosecutors to possible liability; courtroom advocacy does not, even when based on tainted evidence.

E. Impact and Implications

1. Expanded Exposure for Prosecutors in the Investigative Phase

The opinion reinforces—and perhaps sharpens—the lesson that prosecutors do not enjoy categorical immunity for everything they do. In particular:

When prosecutors step into a quasi‑investigative role and advise law enforcement on specific investigative tactics (like show‑ups), they occupy the same qualified immunity terrain as police officers.
If the law governing those tactics is clearly established—here, the constitutional limits on unduly suggestive identifications—they cannot rely on qualified immunity as a backstop, at least at summary judgment.

Practically, this may:

Encourage prosecutors to exercise greater caution and seek more information before approving high‑risk identification procedures; and
Lead offices to develop written policies or training materials addressing when and how prosecutors should advise officers on show‑ups, lineups, and photo arrays.

2. Pressure on the Use of Show‑Ups

Show‑ups, while not per se unconstitutional, have long been disfavored. The opinion, in tandem with Sammons and Ramsey I, adds to a growing body of law that:

Recognizes show‑ups as inherently risky;
Requires a genuine exigency or some compelling necessity to justify them; and
Demands careful attention to how they are conducted to avoid undue suggestiveness (e.g., suspects not handcuffed or visibly in custody, no police suggestion that “we’ve got the guy,” etc.).

By making prosecutors potentially liable alongside officers for unconstitutional show‑ups, the opinion may further disincentivize their casual or resource‑convenience‑based use (as here, where inability to “get five other individuals” and reluctance to release suspects to arrange a photo lineup were offered as justifications).

3. Distinguishing Suggestive Procedures from Fabrication: Multiple Theories of Liability

The Sixth Circuit’s refusal to let fabrication allegations swallow the show‑up claim has important analytical implications. It makes clear that:

Unduly suggestive procedures and outright fabrication are distinct due process violations, even if they may occur in the same case.
Officials can be held liable for either or both, depending on their specific conduct and causal contribution.

In many wrongful conviction cases, these theories overlap:

Police may conduct a suggestive procedure that produces a shaky identification; then
They may embellish, misstate, or fabricate the strength of that identification in reports and testimony.

This opinion confirms that the presence of one theory (fabrication) does not as a matter of law negate the other (unconstitutional suggestiveness). Plaintiffs may pursue both, subject to proof.

4. Limits on Malicious Prosecution Claims Against Prosecutors

On the flip side, the decision underscores the formidable barrier

Even when:

A prosecutor is alleged to have knowingly elicited false testimony; or
The entire prosecution is later revealed to be built on unconstitutional or unreliable evidence,

absolute immunity will often foreclose § 1983 actions premised on:

Charging decisions;
Advocacy in probable cause hearings and trial; and
Presentation and use of questionable evidence in court.

Thus, victims of wrongful prosecutions are frequently limited to:

Suing law enforcement officers for investigative misconduct (fabrication, coercion, unlawful searches, improper lineups, etc.); and
Pursuing municipal liability claims (Monell claims) where they can show that prosecutorial or police policies or customs caused the violation.

5. Doctrinal Coherence Within the Sixth Circuit

Finally, the opinion dovetails with other recent Sixth Circuit decisions emphasizing:

Robust enforcement of fair‑trial rights in wrongful conviction cases (Gillispie, Jackson, Raimey); and
A careful, function‑based parsing of immunity defenses (Watkins, Stockdale, Smith v. Wayne County, Cooperrider).

Together, these cases show a judiciary that is:

Willing to hold individual officials accountable where long‑established rights are violated; yet
Bound by the Supreme Court’s strong protection of prosecutorial decision‑making in the judicial phase of criminal cases.

V. Clarifying Key Legal Concepts

1. Show‑Up Identification vs. Lineup and Photo Array

Show‑up: A witness is presented with a single suspect (often shortly after a crime, sometimes in custody, sometimes in suggestive circumstances) and asked if that is the perpetrator. This is highly suggestive because it implicitly signals that police believe this is the suspect.
Lineup: A live procedure with multiple individuals, usually with similar physical features, where the suspect is “embedded” among fillers. The witness is asked whether the perpetrator is present and, if so, to identify the person.
Photo array: Similar to a lineup but using photographs instead of live individuals.

Courts disfavor show‑ups because of the high risk of misidentification, but they may be tolerated when:

There is a pressing need (e.g., the witness is gravely injured and might die before another procedure can be arranged); or
Other factors make a less suggestive procedure impractical or impossible without undermining legitimate law enforcement aims.

2. Absolute vs. Qualified Immunity

Qualified immunity:
- Applies to most government officials, including police and prosecutors in investigative or advisory roles.
- Shields them from liability unless they violate a clearly established right that a reasonable official would have known.
- Is generally resolved at summary judgment, based on the state of the law and the facts viewed in the plaintiff’s favor.
Absolute immunity:
- Applies to a small set of functions (e.g., judges acting judicially, legislators acting legislatively, prosecutors acting as advocates in court).
- Provides complete protection from civil damages for those functions, even when the conduct is malicious or in bad faith.
- Is grounded in a policy judgment: fear of personal liability should not distort core judicial and prosecutorial decision‑making.

3. “Clearly Established” Law in Qualified Immunity

“Clearly established” does not require a prior case with identical facts, but there must be:

Existing precedent (Supreme Court, controlling circuit, or strong consensus of persuasive authority) that placed the constitutional issue “beyond debate”; and
Sufficient factual similarity that a reasonable official would have had “fair warning” that the conduct was unlawful.

In this case, the clearly established law stems from Stovall, Gregory, Gillispie, and related cases on suggestive identification procedures.

4. Malicious Prosecution Under § 1983

A § 1983 malicious prosecution claim (as defined in Sixth Circuit law) generally requires:

A criminal prosecution initiated against the plaintiff;
Lack of probable cause for that prosecution;
A deprivation of liberty (e.g., detention) as a consequence; and
Termination of the proceeding in the plaintiff’s favor.

While such claims can be brought against law enforcement officers or municipalities, they are often barred against prosecutors because the relevant conduct—charging, presenting evidence, advocacy at preliminary hearings and trial—is protected by absolute immunity.

5. Probable Cause Hearing / Preliminary Examination

A preliminary examination or probable cause hearing is an early stage of the criminal process where:

The state presents evidence to an examining magistrate or judge;
The question is whether there is probable cause to believe the defendant committed the offense; and
If probable cause is found, the case is “bound over” for trial.

Prosecutors’ roles in these hearings—selecting and questioning witnesses, arguing in favor of probable cause—are treated the same as their functions at trial for immunity purposes.

6. Nolle Prosequi

A nolle prosequi is a formal declaration by the prosecutor that they will no longer pursue the case. It typically results in dismissal of charges and can count as a “favorable termination” for purposes of some civil claims, such as malicious prosecution, depending on the circumstances.

VI. Conclusion

The Sixth Circuit’s decision in Ramsey v. Rivard (as to Gaertner) crystallizes a significant doctrinal line:

Prosecutors can be held liable under § 1983 when, acting in an investigative or advisory capacity before probable cause exists, they approve or endorse investigative techniques—like unduly suggestive show‑ups—that violate clearly established due process rights and contribute to wrongful convictions.
Prosecutors remain absolutely immune for their traditional advocative functions—seeking warrants, conducting probable cause hearings, presenting evidence at trial—even where those actions rely on tainted or false evidence, leaving malicious prosecution claims against them largely foreclosed.

By drawing a firm line between Gaertner’s pre‑charge advice (qualified immunity, no shield at summary judgment) and his courtroom/charging conduct (absolute immunity), the opinion both:

Reaffirms the strong protective mantle the law affords to prosecutorial advocacy; and
Signals that prosecutors who choose to involve themselves in on‑the‑ground investigative decisions—especially in fraught areas like eyewitness identification—may face personal liability when they green‑light unconstitutional methods.

In the broader legal context, this case adds weight to the trend of closer judicial scrutiny of eyewitness identification procedures, particularly show‑ups, and underscores the shared responsibility of both police and prosecutors in guarding against wrongful convictions rooted in unreliable identifications. It also serves as a reminder that absolute immunity, while robust within its sphere, does not—and should not—extend to all functions performed by prosecuting attorneys.