NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0371n.06

No. 22-3730

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NICOLETTE CREMEANS; JAMES CREMEANS,

Plaintiffs-Appellees,

v.

SAMANTHA TACZAK; CITY OF CHILLICOTHE, 

OH; KEITH WASHBURN, Chief of Police,

Defendants-Appellants.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE SOUTHERN 

DISTRICT OF OHIO

OPINION

BEFORE: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.

GRIFFIN, Circuit Judge.

After the Chillicothe Police Department held over $30,000 of James and Nicolette 

Cremeans’s money for over nineteen months, they sued, arguing the officers violated their due 

process rights. Defendant officers moved for summary judgment on absolute and qualified 

immunity grounds. The district court denied that motion, and we affirm. 

I.

In early 2018, Chillicothe detectives investigated and surveilled plaintiffs, believing they 

were part of a large drug trafficking operation. On January 10, 2018, Chillicothe police stopped 

James for a traffic violation, and officers seized his cell phone and $1,080 in cash. When Nicolette 

arrived at the scene, they seized her cell phone and an additional $715. Officers then obtained and 

executed a search warrant for their home, which authorized a search for not only evidence of drug 
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crimes, but currency, financial records, and communication devices. They did not find any drugs

or paraphernalia, but discovered and seized $33,715 in cash and various personal property.

Over the following months, plaintiffs demanded return of the seized property “several” 

times. Defendants refused, citing an ongoing investigation. Once their investigation was 

complete, in November 2018, Chillicothe police submitted their case to the Ross County 

Prosecutor. But the prosecutor did not immediately act on the case, so the police continued to hold 

plaintiffs’ cash and property. 

Meanwhile, in September 2018, plaintiffs filed a replevin action in state court. The judge 

ordered defendants to return Nicolette’s cell phone and the $715 seized from her, but denied 

replevin as to all other items given the ongoing criminal investigation. 

In June 2019, plaintiffs filed this lawsuit under 42 U.S.C. § 1983, alleging that defendants

violated their Fourth and Fourteenth Amendment rights. Soon after, the Ross County Prosecutor 

indicted James for “receiving proceeds of an offense subject to forfeiture proceedings.” That 

indictment did not include a separate forfeiture specification (which Ohio law requires, see Ohio 

Rev. Code § 2941.1417), nor had a civil forfeiture action been initiated against plaintiffs. On 

August 16, 2019, a state grand jury returned a second indictment against James that included the 

following forfeiture specification:

The grand jurors further find and specify that U.S. currency in the amount equal to 

$30,855.82 belonging to James D. Cremeans, specifically, the $1080.00 in U.S. 

currency seized from the person of the said James D. Cremeans, and the $29,775.82 

in U.S. currency seized from the residence of the said James D. Cremeans, . . . is 

subject to forfeiture. 

Then, in October 2019, the district court granted plaintiffs’ request for a preliminary injunction. 

The court noted that it was “at a loss to comprehend the state’s failure to file in a timely manner 

civil forfeiture or request forfeiture in the first indictment.” It declared defendants’ actions 
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unconstitutional and ordered “the return of property seized during the execution of a search warrant 

on January 10, 2018.” James’s pending state charges were dismissed in November 2020. In March 

2021, defendants returned the cash to plaintiffs’ counsel.

This case comes to us following the parties’ cross motions for summary judgment. The 

district court granted defendants’ motion on plaintiffs’ Fourth Amendment claim, which is not at 

issue in this appeal. But the court declined to grant summary judgment in favor of either party on 

the Fourteenth Amendment claim, finding that defendants were not entitled to absolute or qualified 

immunity and that material disputes of fact precluded judgment. Defendants timely appealed.1

II.

Defendants argue they are entitled to absolute prosecutorial immunity because they were 

performing a prosecutorial function when they held the seized property. The district court 

disagreed, and we affirm. 

“We review the district court’s denial of a defendant’s claims that he is entitled to absolute 

or qualified immunity de novo, as that issue is a question of law.” Spurlock v. Thompson, 330 F.3d 

791, 796 (6th Cir. 2003) (citation and brackets omitted). But we must defer to the district court’s 

determinations of fact. Adams v. Blount Cnty., 946 F.3d 940, 948–49 (6th Cir. 2020). 

“Absolute immunity is the exception rather than the rule.” Spurlock, 330 F.3d at 796 

(citation and brackets omitted). We generally assume that qualified, not absolute, immunity is 

sufficient to protect a government actor. Id. So “[t]he official seeking absolute immunity bears 

the burden of showing that such immunity is justified for the function in question.” Buckley v. 

1Defendant City of Chillicothe seems to appeal the district court’s denial of summary 

judgment in its favor on plaintiffs’ municipal-liability claim, see Monell v. Dep’t of Soc. Servs. of 

City of New York, 436 U.S. 658 (1978), but that claim is not “inextricably intertwined” with the 

reviewable claims on appeal. See Shumate v. City of Adrian, 44 F.4th 427, 450 (6th Cir. 2022)

(citation omitted). We therefore dismiss the City’s appeal for lack of jurisdiction. 
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Fitzsimmons, 509 U.S. 259, 269 (1993) (citation omitted). It does not matter that defendants are 

police officers, rather than prosecutors, because we use a “functional approach” to determine 

whether officials are entitled to absolute immunity, “which looks to the nature of the function 

performed, not the identity of the actor who performed it.” Id. (internal quotation marks omitted). 

Prosecutorial immunity from suit under § 1983 applies to activities that are “integral part[s] 

of the judicial process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (citation omitted); see also 

Price v. Montgomery Cnty., 72 F.4th 711, 719–20 (6th Cir. 2023). “The analytical key to 

prosecutorial immunity . . . is advocacy—whether the actions in question are those of an 

advocate.” Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000). So “the critical inquiry is how 

closely related is the prosecutor’s challenged activity to his role as an advocate intimately 

associated with the judicial phase of the criminal process.” Id. (citation omitted). For example, 

prosecutors have absolute immunity for “the professional evaluation of the evidence assembled by 

the police and appropriate preparation for its presentation at trial or before a grand jury after a 

decision to seek an indictment has been made.” Buckley, 509 U.S. at 273. 

But “prosecutors are not entitled to absolute immunity for” actions that are not “closely 

associated with the judicial process” like investigative or administrative acts. Id. at 271 (citation 

omitted); see also Burns v. Reed, 500 U.S. 478, 483 n.2 (1991). “[A] prosecutor who ‘performs 

the investigative functions normally performed by a detective or police officer’ such as ‘searching 

for the clues and corroboration that might give him probable cause to recommend that a suspect 

be arrested’ is entitled only at most to qualified immunity.” Prince v. Hicks, 198 F.3d 607, 611 

(6th Cir. 1999) (quoting Buckley, 509 U.S. at 273). 

In defendants’ view, if prosecutors are entitled to absolute immunity for their “professional 

evaluation of the evidence assembled by the police,” Buckley, 509 U.S. at 273, then police officers
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must be entitled to the same immunity when they hold the evidence (and therefore facilitate the 

prosecutor’s evaluation). More specifically, they contend that once their investigation was 

complete and they were just holding the evidence pending a prosecutorial decision, the possession 

became a prosecutorial function. We cannot agree.

Defendants never evaluated the evidence; they merely held it—a fact they admitted to the 

district court, calling their actions “ministerial.” Nor did they do any advocacy, which is the 

“critical inquiry.” Holloway, 220 F.3d at 775 (citation omitted). Absent that, we see no actions 

related to the judicial process—let alone ones that are “intimately associated with the judicial phase 

of the criminal process.” Id. (citation omitted). Thus, defendants are not entitled to absolute 

immunity.

III.

Defendants also argue they are entitled to qualified immunity. The district court disagreed, 

a decision we review de novo. See Bey v. Falk, 946 F.3d 304, 311 (6th Cir. 2019). We affirm. 

It is “well settled that a temporary, nonfinal deprivation of property is nonetheless a 

‘deprivation’ in the terms of the Fourteenth Amendment,” triggering certain due process 

requirements. Fuentes v. Shevin, 407 U.S. 67, 85 (1972). All agree that the process due to 

plaintiffs was the initiation of a forfeiture action within a reasonable time; an “unreasonable” delay 

between the seizure and the filing of a forfeiture action violates the constitution. See, e.g., United 

States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 

555, 564–65 (1983). We evaluate whether such a delay was unreasonable by balancing four factors

(commonly referred to as the Barker factors): “the length of the delay, the reason for the delay, 

the claimant’s assertion of his right, and the prejudice to the claimant.” United States v. Ninety 

Three Firearms, 330 F.3d 414, 424–25 (6th Cir. 2003) (citing Barker v. Wingo, 407 U.S. 514, 530 
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(1972)).2 “[N]one of these factors is a necessary or sufficient condition for finding unreasonable 

delay. Rather, these elements are guides in balancing the interests of the claimant and the 

Government to assess whether the basic due process requirement of fairness has been satisfied in 

a particular case.” $8,850, 461 U.S. at 565. 

We review plaintiffs’ constitutional claim through the lens of qualified immunity, which

shields public officials from personal liability unless they “violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 

U.S. 800, 818 (1982). To determine whether defendants are entitled to qualified immunity, we 

must ask two questions: (1) “whether the facts that a plaintiff has . . . shown . . . make out a 

violation of a constitutional right,” and (2) “whether the right at issue was ‘clearly established’ at 

the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) 

(citation omitted). We may consider these questions in either order. Id. at 236.

As to the first qualified-immunity question—whether there was a constitutional violation—

defendants argue they were not “involve[d] in the Prosecutor’s delay,” so they cannot be held 

liable for any constitutional violation. But, as the district court noted, the extent of defendants’ 

involvement is a pure question of fact. So we cannot address this argument. See Moldowan v. 

City of Warren, 578 F.3d 351, 371 (6th Cir. 2009); see also Adams, 946 F.3d at 948–49. 

We turn, then, to the second question. For a right to be clearly established, “the contours 

of the right must be sufficiently clear that a reasonable official would understand that what he is 

doing violates that right.” Burwell v. City of Lansing, 7 F.4th 456, 476 (6th Cir. 2021) (citation 

2Barker set out these factors to evaluate a claim that the government violated a defendant’s 

Sixth Amendment right to speedy trial. 407 U.S. at 530. In $8,850, the Supreme Court held that

the Barker test also applies to claims of deprivation of property without due process. 461 U.S. at 

565. 
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and brackets omitted). “[C]learly established law should not be defined at a high level of 

generality”; rather, it must be “particularized to the facts of the case.” White v. Pauly, 580 U.S. 73, 

79 (2017) (per curiam) (internal quotation marks omitted). Under binding circuit precedent, we 

may look to decisions of the United States Supreme Court, our Court of Appeals, and the Ohio 

Supreme Court to determine whether a right is clearly established.3 Durham v. Nu’man, 97 F.3d 

862, 866 (6th Cir. 1996). 

The right at issue here was clearly established by the Ohio Supreme Court in 1990. In State 

v. Baumholtz, the State of Ohio seized Robin Baumholtz’s car after police discovered her using 

cocaine in it. 553 N.E.2d 635, 635 (Ohio 1990). Baumholtz was arrested and charged with a 

felony and two misdemeanors. Id. The state did not immediately file a petition for forfeiture, 

instead waiting nearly six months. Id. at 636–37. The trial court denied the petition for forfeiture

and the court of appeals affirmed, concluding that the state failed to comply with its own

procedural requirements for forfeiture. Id. at 636. On appeal, the Ohio Supreme Court applied 

the four-factor Barker test and held that “[t]he delay in the instant case—approximately five and 

one-half months—[was] significant.” Id. at 637–39. The state argued that forfeiture required an 

individual to be convicted of a felony, so the ongoing criminal case against Baumholtz justified 

the delay in filing. Id. But the Ohio Supreme Court rejected this argument, noting that the criminal 

proceedings did “not justify the delay in filing a petition for forfeiture.” Id. On the third factor, 

the court noted that there was no evidence that Baumholtz asserted her right to a timely forfeiture 

proceeding, so this factor weighed against her. Id. Nor was there evidence that she suffered 

3We recognize that the Supreme Court has merely assumed that non-Supreme Court 

caselaw can constitute clearly established law. See, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 

8 (2021) (per curiam) (“Even assuming that controlling Circuit precedent can clearly establish law 

for purposes of § 1983, . . . .”). But defendants do not challenge plaintiffs’ reliance on Ohio 

caselaw on this ground, so we need not revisit our binding precedent today.
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prejudice, so that too weighed against her. Id. Balancing these factors, the court noted this was 

“a close case,” but “both the length of the delay and the lack of any credible reasons for the failure 

to promptly file a forfeiture petition must be given great weight.” Id. at 640. Even with findings 

against Baumholtz on the other two factors, the Ohio Supreme Court concluded that “the delay in 

filing the forfeiture petition was unreasonable.” Id. 

At this stage, Baumholtz is directly on point. The district court made two findings of fact

crucial to this conclusion: it found that the delay in this case was 19 months and 6 days (the period 

between the January 10, 2018, seizure and the August 16, 2019, indictment), and that “Defendants 

have offered no credible explanation for the latter half of the 19-month delay.”

4

Indeed, plaintiffs’ 

case is even stronger than Baumholtz’s—the delay is nearly four times as long (first factor), and 

they timely sought return of their property “multiple” times “and filed a replevin action” (third 

factor). Accordingly, under Baumholtz, reasonable officers would have known that plaintiffs had 

been unlawfully deprived of their property. 

Defendants seek to distinguish Baumholtz on three fronts, but none of their arguments 

persuade. They first contend that the seizure of a car is distinct from the seizure of cash. While 

the Baumholtz court did note that the seizure of a vehicle was particularly “onerous,” id. at 638 

(citation omitted), the Supreme Court has recognized that the deprivation of cash is “undoubtedly 

a significant burden,” $8,850, 461 U.S. at 565. That it involved a vehicle does not render 

Baumholtz materially distinct. Defendants next argue (in their reply brief) that Baumholtz is 

4Defendants argue that the criminal investigation justified the delay, but the district court 

rejected this argument because, while pending criminal proceedings are a factor to consider, they 

do not automatically toll the application of the due process clause to forfeiture proceedings. See

$8,850, 461 U.S. at 567; Baumholtz, 553 N.E.2d at 639. In any event, the district court found the 

defendants’ investigation stopped after ten months, so it could not justify the additional nine-month 

delay. 
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inapplicable because it applied an Ohio forfeiture statute, rather than the Fourteenth Amendment’s 

due process clause. But they did not raise this argument in their opening brief, so it is forfeited. 

See Bormuth v. Cnty. of Jackson, 870 F.3d 494, 500 (6th Cir. 2017) (en banc). Finally, defendants 

note that Baumholtz did not involve a criminal investigation. That is incorrect: Baumholtz was 

arrested and charged with felony drug abuse, as well as misdemeanor assault and resisting arrest.5 

Baumholtz, 553 N.E.2d at 635. While the court never used the word “investigation,” Baumholtz 

was the subject of ongoing criminal proceedings, just like plaintiffs here. 

Baumholtz clearly establishes that a five-and-a-half-month delay in initiating forfeiture 

proceedings with no credible justification is unlawful, even without the exercise of diligence or 

suffering of prejudice. When compared to this case (a nineteen-month delay, no credible 

justification, and a finding that plaintiffs diligently attempted to get their property back), the 

district court properly concluded that defendants should have known that their conduct violated 

plaintiffs’ clearly established rights.

IV.

For these reasons, we dismiss the appeal in part and affirm the judgment of the district 

court in part. 

5These facts appear in the syllabus of the opinion, which is part of the opinion. See Ohio 

Rep. Op. R. 2.2 (“The law stated in an opinion of the Supreme Court shall be contained in its text, 

including its syllabus, if one is provided, and footnotes.”); see also Zacchini v. Scripps-Howard 

Broad. Co., 433 U.S. 562, 566 n.3 (1977) (quoting Hart v. Andrews, 132 N.E. 846, 847 (Ohio 

1921)) (“The syllabus is the language of the court.”).