On July 22, 2019, the Sixth Circuit Court of Appeals decided Shull v. Walgreen Company et al.[i], in which the court examined whether an officer was entitled to qualified immunity from liability when he was sued for violating the plaintiff’s rights under the Fourteenth Amendment for using an impermissibly suggestive photographic identification procedure.   The relevant facts of Shull, taken directly from the case, are as follows:

On January 16, 2015, VanRuden was called to Walgreens in Crossville to answer a shoplifting complaint. He was informed that the shoplifter was a short, thin, white woman with dark hair, wearing black pants and a red coat and that she had left the store in a Lincoln town car with license plate number F49889C. VanRuden determined that Cynthia Tucker was the registered owner of the town car based on the license plate number. Shull’s address was the same address that Cynthia Tucker listed on her driver’s license. VanRuden obtained photographs of Tucker and Shull and information on Shull’s height and weight from the Tennessee Department of Motor Vehicles (“DMV”).

Walgreens Cashier Kim McCoy, who was working on January 16, 2015 and observed the shoplifter, identified Shull’s photo as the shoplifter. Shull’s height and weight also matched shift manager Cameron Simms and McCoy’s description of the shoplifter. Shull was on the banned list at Walgreens because of a public intoxication arrest on January 18, 2014. McCoy was also working at Walgreens during Shull’s arrest on January 18, 2014 and remembered the incident.

A Judicial Commissioner determined probable cause existed for shoplifting and criminal trespass charges and issued warrants for both. After the warrants issued, Shull turned herself in to the Crossville Police Department. Shull claims that she was not at Walgreens during the night of the January 2015 shoplifting incident.[ii]

The court also noted that the officer used the vehicle registration information to obtain photographs of Shull from the Tennessee Bureau of Motor Vehicles.  These photographs were shown to the store clerk as a means of identifying Shull.  Additionally, after the officer obtained the arrest warrant for Shull, he did not arrest her or contact her.  Shull surrendered eight days after she learned of the warrant.  Ultimately, the assistant district attorney dismissed the charges against Shull.

Shull subsequently filed a civil suit against the officer, City of Crossville, and Walgreens for violations of her rights under the Fourth and Fourteenth Amendments, as well as state law tort claims for defamation, negligence and abuse of process.  The district court dismissed the Fourth Amendment claim because it found that there was probable cause to obtain the warrant.  However, the district court denied qualified immunity for the officer for the Fourteenth Amendment due process claim regarding the impermissibly suggestive photographic identification procedure.

The officer appealed the denial of qualified immunity to the Sixth Circuit Court of Appeals.  The issue on appeal was whether the officer was entitled to qualified immunity from suit on the Fourteenth Amendment claim regarding the photographic identification procedure.

At the outset, the Sixth Circuit discussed the law regarding qualified immunity.  The court stated

The doctrine of qualified immunity shields officials from civil liability if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The qualified immunity analysis has two steps: “(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established.” Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)).  The Supreme Court has recently reiterated that courts must not define “clearly established law” at a high level of generality when determining whether a public official is entitled to qualified immunity. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).[iii]

The Sixth Circuit stated that the district court correctly dismissed the Fourth Amendment claim because probable cause was present to arrest Shull.

Regarding the Fourteenth Amendment claim, Shull argued that the Supreme Court, in Neil v. Biggers[iv], held that an impermissibly suggestive identification procedure could violate a person’s Fourteenth Amendment due process rights.  However, the Sixth Circuit stated

While Biggers considered “the scope of due process protection against the admission of evidence deriving from suggestive identification procedures,” id. at 196, it ultimately condoned the use at trial of photographs and other means of identifying a rapist that may have been thought overly suggestive and unreliable. Id. at 200-01.[v]

The Sixth Circuit then noted that Shull was unable to provide any case law to support her argument that the law was “clearly established.”  The Sixth Circuit also opined that Biggers fell “far short” of “clearly establishing” law for her case.  As such, the court held that the officer was entitled to qualified immunity on the Fourteenth Amendment claim.

The Sixth Circuit also held that Shull’s state law claims against the officer and city for defamation, negligence, and abuse of process should also be dismissed because probable cause (which was present to arrest Shull) defeated each of these claims.

As such, the Sixth Circuit vacated the district court’s judgment and remanded the case with instructions to dismiss the case in favor of the officer and city.

A review of Neil v. Biggers:

In Neil v. Biggers, the detectives conducted a single person “show-up” with the defendant and the rape victim seven months after the crime occurred.  The defendant’s argument in this case was that the identification procedure used was impermissibly suggestive such that it violated the defendant’s due process rights under the Fourteenth Amendment.  The detectives stated that they used this procedure because it was very difficult to find additional persons that meet the suspect’s description and the victim had spent enough time with the suspect (during the sexual assault) to enhance the likelihood that she would be able to recognize the correct suspect.

Ultimately the Supreme Court held that an eyewitness’s identification at trial following a pretrial identification will be inadmissible as a violation of due process only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In Bigger’s, the Supreme Court found sufficient evidence that the victim’s identification of the suspect was reliable, based on the totality of the circumstances.  The court stated that the factors to consider when evaluating the likelihood of misidentification are as follows:

1) The opportunity of the witness to view the criminal at the time of the crime,

2)  The witness’s degree of attention,

3)  The accuracy of the witness’s prior description of the criminal,

4)  The level of certainty demonstrated by the witness at the confrontation,

5)  The length of time between the crime and the confrontation.

Practice Pointers

Normally, in a situation such as presented in Shull’s case, the best practice would be to create a photographic line-up of at least six (6) total individuals (the suspect plus five (5) fillers).  The five (5) fillers should be of similar description to the suspect.  Further, current best practice is to present the witness one photo at a time (a sequential photographic line-up), rather than six (6) photographs at the same time in a file folder (the “six-pack”), as it is less likely to lead to a misidentification.



[i] No. 18-5839 (6th Cir. Decided July 22, 2019 Unpublished)

[ii] Id. at 2

[iii] Id. at 4-5 (emphasis added)

[iv] 409 U.S. 188 (1972)

[v] Shull at 6

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