Sixth Circuit Denies Qualified Immunity to Detective Who Did Suggestive Showup For Eyewitness in Wrongful Conviction Case

In contrast to a lineup of photo array, both of which feature a suspect and multiple "fillers," "[a] showup is a pretrial identification procedure where a witness is shown only the suspect and asked if that person was the perpetrator." Understandably, showups are disfavored and sometimes prohibited, and one was at the center of the wrongful conviction claim in Salter v. City of Detroit, 2025 WL 880238 (6th Cir. 2025).

In Salter, 

Aaron Salter spent 15 years in prison for a deadly shooting he did not commit. Salter's conviction rested on a single eyewitness's testimony identifying him as one of two shooters. There was no physical evidence or other witness tying Salter to the murder. Instead, the eyewitness identified Salter when the lead investigator, Detective Donald Olsen, showed him a single mug shot of only Salter and said that police had already arrested one of the shooters. That same eyewitness testified that he also identified a different man as the shooter from a photo array. And that man more closely resembled the witness's description of the shooter than Salter. The investigator's file also contained a separate closeup photo of that man, suggesting he was a suspect. Salter claim[ed] that Detective Olsen failed to disclose any of this information, leading to an unfair trial and his wrongful conviction.

Salter thereafter brought a civil rights lawsuit, claiming, inter alia, that "Detective Olsen violated his constitutional rights...by conducting an unnecessarily suggestive identification process that led to the eyewitness's false identification of Salter."

In denying Detective Salter's motion for summary judgment on grounds of qualified immunity, the Sixth Circuit ruled as follows:

In 1977, our court applied Stovall and its progeny in Webb v. Havener....In Webb, two robbery witnesses described the robbers to the police “in general terms.”...The police told the witnesses to wait at the station while they went to get a suspect, and then they presented Webb to the witnesses without arranging for a lineup....The witnesses identified Webb as one of the robbers, and Webb was convicted of armed robbery with the witnesses’ identification as the sole evidence connecting him to the crime....

We held that the single-person show-up of Webb was unduly suggestive, and that a subsequent in-court identification was not harmless error because it lacked “an independent basis.”...We explained that police officers cannot focus a witness's attention on one suspect without an articulable need for employing such a procedure....Yet the officers in Webb offered “[n]o explanation” for why they failed to arrange a lineup, and there was no reason for a “hurried” process as in Stovall....We also held that several reliability factors weighed in Webb's favor: the witnesses had observed the robbers for only “a couple of minutes” while at gunpoint; their description of the robbers didn't match Webb's appearance; and their testimony was at times inconsistent....The admission of the overly suggestive identification at trial therefore violated Webb's due process rights....

Detective Olsen's decision to present Luster with a single black-and-white mug shot of Salter was clearly unlawful for the same reasons. Detective Olsen admitted that nothing prevented him from presenting Salter's photo as part of an array. Adding to the suggestive nature of the identification, before showing Salter's photo to Luster, Detective Olsen told Luster that the police had apprehended one of the shooters. That statement could have further influenced Salter's identification by suggesting that Detective Olsen had an independent basis to suspect Salter (he did not). Luster's identification also had the same indicia of unreliability as the one in Webb: Luster saw the shooters briefly at night while fleeing from gunfire; his description of the shooters’ weight and height did not match Salter's; and his identification was inconsistent—he identified three people as the two shooters.

The dissent counters that Salter's rights could not have been clearly established, otherwise his attorney would have objected more forcefully to evidence of the show-up during trial....Alternatively, the dissent says the prosecutor would not have relied so heavily on the show-up in seeking an indictment if it were clearly unconstitutional, and the state court would have excluded it....But our inquiry is not based on the actions of Salter's lawyer, the prosecutor, or the now-vacated rulings in the state court criminal proceedings. Based on binding precedent, a reasonable officer would have known that, under these circumstances, the single-person show-up would not produce a reliable identification. So its admission at trial violated Salter's due process rights.

What's more, at the time, the Detroit Police Department's policy also prohibited the show-up, stating that “[w]itnesses should never be shown only a photograph of the suspect.”... That policy is of course not dispositive of our qualified immunity inquiry, but it is further proof that Detective Olsen was on notice that his actions were unlawful....We therefore hold that Detective Olsen was not entitled to qualified immunity on Salter's suggestive identification claim.

-CM