Malicious Prosecution Claims

Thompson v. Clark, which was decided on Monday, April 4, is an important victory for civil rights plaintiffs. The Supreme Court held that malicious prosecution claims can be brought under the Fourth Amendment pursuant to 42 U.S.C. Section 1983 and a criminal prosecution is deemed to have a favorable termination when it ends without a criminal conviction. Although prevailing in such suits remains difficult, the court’s decision will increase the ability of injured individuals to sue the police for malicious prosecution.

Larry Thompson and his girlfriend (now wife) had a week-old baby. Thompson’s sister-in-law, who was staying with them, called 911 and said that she thought the baby was being sexually abused because of red marks on the baby’s buttocks. Emergency Medical Technicians came to the apartment, but left thinking it was the wrong address. Later that night, they returned with police officers. Thompson said that the officers could not enter without a warrant. The officers pushed their way in, shoving Thompson to the floor. Thompson was arrested and charged with resisting arrest and obstructing governmental administration. The baby was taken to the hospital where an examination revealed that it was a diaper rash.

The prosecutor dismissed the charges against Thompson “in the interests of justice.” Thompson sued one of the officers, Pagiel Clark, who signed a criminal complaint during Thompson’s initial post-arrest detention. Thompson sued for malicious prosecution as a violation of his Fourth Amendment rights. Both the federal district court and the United States Court of Appeals for the Second Circuit ruled against Thompson, saying that he had not shown an affirmative indication of actual innocence, which they deemed to be an essential element of a malicious prosecution claim.

The Court, in a 6-3 decision reversed the Second Circuit and said that Thompson stated a claim for relief for malicious prosecution. Justice Brett Kavanaugh wrote the opinion for the Court, joined by Chief Justice John G. Roberts and Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett.

At the outset, the Court recognized that both its prior decisions and lower court rulings have recognized a claim for malicious prosecution under the Fourth Amendment. The Court said that “to determine the elements of a constitutional claim under §1983, this Court’s practice is to first look to the elements of the most analogous tort as of 1871 when §1983 was enacted, so long as doing so is consistent with ‘the values and purposes of the constitutional right at issue.’”

The Court said that at common law, there were three elements for a claim of malicious prosecution: “(i) the suit or proceeding was ‘instituted without any probable cause’; (ii) the ‘motive in instituting’ the suit ‘was malicious,’ which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice; and (iii) the prosecution ‘terminated in the acquittal or discharge of the accused.’” The Court said that these remain the three requirements for a successful claim for malicious prosecution.

This case is about the third element: what constitutes a favorable termination in favor of the defendant? Here, too, the Court said that to answer this, “we must look to American malicious prosecution tort law as of 1871,” which was when Section 1983 was adopted.

The Court examined the law of that time and concluded that there did not need to be an affirmative indication of actual innocence. Instead, it was sufficient that the case was resolved without a conviction. The Court concluded: “In sum, we hold that a Fourth Amendment claim under §1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff need only show that the criminal prosecution ended without a conviction.”

Justice Samuel A. Alito, joined by Justices Clarence Thomas and Neil M. Gorsuch, dissented and argued that no malicious prosecution claim should be allowed under the Fourth Amendment. The dissent objected that “this Court has never held that the Fourth Amendment houses a malicious-prosecution claim.”

In one sense, the Court’s ruling is narrow, reversing the dismissal of Thompson’s malicious prosecution claim and remanding the case to determine whether the other elements have been met. But the case is significant on a number of levels. First, the Court clearly indicates that malicious prosecution claims can be brought under the Fourth Amendment. The Court initially indicated this in a case where the justices were splintered and there was no majority opinion. Albright v. Oliver (1994) (plurality opinion). The Court reaffirmed this in Manuel v. Joliet (2017). But Thompson v. Clark is clear that malicious prosecution claims can be brought under the Fourth Amendment.

Second, to demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under §1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction. There need not be an affirmative indication of actual innocence. No mechanism exists to have a court find someone innocent when charges are dismissed. If the Court had ruled otherwise, it would have meant that prosecutors can always avoid liability for malicious prosecution by bringing charges and then dismissing them.

Third, it is stunning how much both the majority and the dissent are exploring the right and its contours based on the law that existed in 1871. It shows the powerful influence of originalism in decision-making in all areas of constitutional law. Often, originalism works to the disadvantage of civil rights plaintiffs and to claims of constitutional rights. In Thompson v. Clark, though, the Roberts Court decision is a victory for those suing police officers for malicious prosecution.