SCOTUS Resolves Circuit Split in § 1983 Claims, Dissent Claims Majority Created a New Tort
On April 4, 2022, the Supreme Court issued Thompson v. Clark, et al, No. 20-659, 596 U.S. ____ (2022), holding that to demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under 42 U.S.C. § 1983 for malicious prosecution, a plaintiff need not show that the criminal prosecution ended with some affirmative indication of innocence, rather, a plaintiff need only show that his prosecution ended without a conviction.
This holding resolved a split among the Courts of Appeals over how to apply the favorable termination requirement of the Fourth Amendment claim under § 1983 for malicious prosecution. Justice Kavanaugh delivered the opinion of the Court and was joined by Roberts, C.J, and Breyer, Sotomayor, Kagan, and Barrett, JJ. The opinion is characterized as resolving a “narrow dispute in this case concern[ing] one element of the Fourth Amendment claim under § 1983 for malicious prosecution.”
The problem with the majority’s opinion and holding, according to the dissent, is that the majority created a new tort altogether because the Fourth Amendment offers no protection for claims of malicious prosecution. The dissent was authored by Justice Alito, and joined by Thomas and Gorsuch, JJ.
The majority’s opinion is an easy read with a straight-forward holding that makes the plaintiff’s burden easier because the plaintiff no longer has to rely on the prosecutor or judge making a statement on the record about why the criminal charges were dismissed. But the dissent got me thinking – the majority may have impermissibly used the Fourth Amendment as a catch-all net to capture a malicious prosecution claim, when a malicious prosecution claim is distinct from an unreasonable seizure claim.
I will attempt to explain both sides and you can decide for yourself.
Larry Thompson was arrested for resisting the entry of police into his apartment when a 911 call had been made accusing Thompson of abusing his infant child. Thompson was held in custody for two days, released, and before trial, the prosecution moved to dismiss the charges, and the trial judge dismissed the case. There was no explanation on the record as to why the charges were dismissed. Thompson then brought a § 1983 suit for damages against the police officers who arrested and charged him. Thompson alleged a Fourth Amendment claim for “malicious prosecution” asserting that the police “maliciously prosecuted” him and “subjected him to an unlawful, illegal and excessive detention” in violation of his Fourth Amendment rights.
Under Second Circuit precedent, Thompson had to show that his criminal prosecution ended not merely without a conviction, but also with some affirmative indication of his innocence. His suit was therefore dismissed by the District Court, which was affirmed by the Second Circuit. Thompson petitioned the Supreme Court which took the case to resolve the circuit split: is the element of favorable termination of prosecution satisfied by a mere showing that the criminal prosecution ended without a conviction, or must there be some affirmative indication of innocence?
The Court determined that resolution of this question required an analysis of the elements of the most analogous tort as of 1871, when the predecessor to § 1983 was first enacted. Relying on Court of Appeals opinions, the Court found that the most analogous tort to this Fourth Amendment claim is malicious prosecution “because the gravamen of the Fourth Amendment claim for malicious prosecution…is the wrongful initiation of charges without probable cause” and that “the wrongful initiation of charges without probable cause is likewise the gravamen of the tort of malicious prosecution.”
The tort of malicious prosecution contains an element that the prosecution “terminated in the acquittal or discharge of the accused.” The Court found that as of 1871, the favorable termination element of a malicious prosecution claim was satisfied so long as the prosecution ended without a conviction. The American courts were largely in agreement with that interpretation. Several courts at that time explicitly added that a favorable termination did not require an acquittal or a dismissal accompanied by some affirmative indication of innocence.
The majority found logic in these interpretations because the question of whether a criminal defendant was wrongly charged does not depend on whether the prosecutor or court explained why the prosecution was dismissed. A person’s ability to seek redress for a wrongful prosecution should not turn on the fortuity of whether there happened to be an explanation of why the charges were dismissed.
Thus, the majority held 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.
I told you, easy-peasy.
WAIT A MINUTE! (says, the dissent). Why are we even considering malicious prosecution as a violation of the Fourth Amendment? Justice Alito, what say you to the majority? Justice Alito said that “the Court creates a chimera of a constitutional tort by stitching together elements taken from two very different claims: a Fourth Amendment unreasonable seizure claim and a common-law malicious-prosecution claim.” A “chimera” – for those of you not up-to-speed onHomer’s Iliad – is “all lion in front, all snake behind, all goat between.”
The dissent criticizes that majority’s flawed logic that a malicious prosecution is analogous to an unreasonable seizure claim, and because malicious prosecution demands proof of favorable termination, an unreasonable seizure claim must also include that same element. The dissent decries this “new creation” by the majority as the Supreme Court “has never held that the Fourth Amendment houses a malicious-prosecution claim.” Accordingly, this “novel hybrid claim of uncertain scope [ ] has no basis in the Constitution[.]”
The Fourth Amendment prohibits “unreasonable searches and seizures.” A claim based upon an unreasonable seizure has two indispensable elements: (1) there must have been a “seizure” and (2) the seizure must have been “unreasonable,” which in the case of an arrest, means the officers making the arrest lacked probable cause.
By contrast, malicious prosecution has three elements: (1) the suit or proceeding was instituted without any probable cause; (2) the motive in instituting the suit was malicious; and (3) the prosecution terminated in the acquittal or discharge of the accused.
The dissent highlights the differences between these two claims. A Fourth Amendment claim does not require proof that there was a “prosecution” (criminal proceeding that is initiated by the filing of charges), whereas a malicious-prosecution claim obviously requires a prosecution. The Fourth Amendment claim merely requires an unreasonable seizure. For instance, a person who is arrested without probable cause may still have a viable unreasonable-seizure claim even if he is released before any charges are filed. Likewise, a person who is arrested without probable cause but then convicted based on evidence discovered after the arrest, is not barred from recovery simply because he cannot show a favorable termination to the proceeding.
Further, an unreasonable-seizure claim does not require “malice” in the way that a malicious-prosecution claim does. For the Fourth Amendment, the actual motivations of the individual officers are irrelevant; all that matters is whether there was probable cause for the arrest, based upon an objective standpoint.
For the tort of malicious prosecution, a defendant may never be seized, as there are many non-violent crimes for which criminal defendants agree to appear for arraignments and are released pending trial without detention. Criminal defendants in those instances may bring a suit for malicious prosecution if the other elements of the tort can be shown, even though they were never seized, as is required for the Fourth Amendment claim.
More intricately, while the malicious-prosecution claim does not require that a criminal defendant be seized without probable cause, the claim does demand that the criminal defendant was prosecuted without probable cause. The dissent emphasizes that probable cause at the time of arrest is a different question from probable cause at the time at which a prosecution is initiated. The Fourth Amendment protects against “unreasonable searches and seizures” – not the unreasonable “initiation of charges.”
The dissent chastises the majority for its ambiguous description of the “gravamen” of a Fourth Amendment claim for malicious prosecution being the “wrongful” initiation of charges. According to the dissent, if this phrase simply refers to a lack of probable cause, then the Court has failed to capture the “gravamen” of malicious-prosecution claims because that tort does not simply hinge on a lack of probable cause, but that the prosecution be initiated with “malice.” If by contrast, the majority intended “wrongful” to require “malice” then the claim would be even more incompatible with the Fourth Amendment which almost always imposes a purely objective standard.
The dissent also reviewed its own precedents to drive home the message that the Supreme Court has never recognized a Fourth Amendment malicious-prosecution claim, notwithstanding erroneous interpretations by lower court decisions that misconstrued a plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994). According to the dissent, Albright correctly identified the “embarrassing diversity of judicial opinion” in the lower courts as to whether a malicious-prosecution claim was actionable under § 1983.
Justice Alito concluded that the majority opinion created a mythical chimera for a Fourth Amendment claim for malicious-prosecution with three beastly elements, never before endorsed by the Supreme Court. The new-founded tort now requires that: (1) the defendant “initiate[ed] charges against the plaintiff in a way that was “wrongful” and “without probable cause,” (2) the “malicious prosecution resulted in a seizure of the plaintiff,” and (3) the prosecution must not have ended in conviction.
“Instead of creating a new hybrid claim,” the dissent would have held “that a malicious-prosecution claim may not be brought under the Fourth Amendment.”
Not for me to decide, but certainly an interesting twist to a straight-forward opinion.