Thompson Ruling Will Shore Up Malicious Prosecution Suits

By Marco Poggio | April 8, 2022, 8:05 PM EDT ·

Until the U.S. Supreme Court's decision Monday in Thompson v. Clark, many former criminal defendants seeking to sue their arresting officers in federal court for malicious prosecution faced an almost insurmountable barrier: demonstrating that their criminal proceedings ended with an affirmation of their innocence.

In the American justice system, where a defendant only has to be proven guilty beyond a reasonable doubt, that is easier said than done. Very rarely, even when DNA evidence exonerates the defendant, does a criminal case end with a proclamation of innocence.

"Criminal courts don't determine actual innocence. They determine guilty or not guilty," Arthur Larkin, a civil rights attorney at Hale & Monico LLC, told Law360.

For years, former criminal defendants in half of the country were barred from suing police officers for state torts, including malicious prosecution, in federal court because they couldn't meet the innocence threshold. Prosecutors or courts dismissing cases with little explanation — sometimes for lack of strong evidence, other times for jurisdictional reasons — effectively nipped potential lawsuits in the bud.

The high court's ruling Monday in favor of Larry Thompson, a Navy veteran from Brooklyn who alleges that he was arrested without probable cause in his home in 2014, brought that doctrine down.

Thompson sued the New York Police Department officers who entered his house without a warrant and arrested him after his sister-law called 911 — it was later found that she was mentally ill.

Thompson was charged with obstructing governmental administration and resisting arrest, but prosecutors dropped the charges "in the interest of justice" months later.

With a 6-3 vote, the court decided that it was enough that defendants show that their cases ended without a conviction to be able to bring a malicious prosecution case against police.

Legal experts say the ruling will give a higher number of former defendants standing to sue police for malicious prosecution in the future, but caution that it likely won't trigger a wave of lawsuits, in part because of existing barriers in bringing such cases.

In the majority opinion, Justice Brett Kavanaugh said, "Officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity."

Andrew G. Celli Jr. of Emery Celli Brinckerhoff Abady Ward & Maazel LLP, a boutique specializing in police misconduct litigation, told Law360 in an email that while it was hard to predict the precise impact of the Thompson decision on the amount of future malicious prosecution litigation, he expected it to be modest.

"At times like these, courts and commentators frequently fret about the impact of decisions like this on 'the floodgates of litigation.' In truth, such floodgates rarely open," Celli said.

Other barriers to such malicious prosecution suits — including the need to allege and prove an absence of probable cause, and the stigma attached to having been criminally charged at all — are high and remain in place despite the decision, he said.

"Becoming a civil rights plaintiff is not for the faint of heart. I would not expect Thompson to materially increase the number of mal-pros cases overall — even as it likely will increase the number of successful ones," Celli said.

Erwin Chemerinsky, constitutional legal scholar and dean of the University of California, Berkeley School of Law, said the court's holding in Thompson v. Clark was narrow, and the justices only ruled that malicious prosecution claims did not require an affirmative indication of actual innocence.

"The court went no further than that," he said. "I do not think this will mean a significant increase in lawsuits. Not that many jurisdictions used the Second Circuit's approach and there are still the other requirements of the test that need to be met."

But Joel B. Rudin, a prominent New York-based criminal defense and civil rights attorney, called the decision "great news for criminal defendants who are wrongfully prosecuted."

"To me, it's a very large expansion of the pool of potential Fourth Amendment claimants," he said. "A very large percentage of potential wrongful prosecution claims had been barred by the requirement that there be some indication of innocence. Right now, that has been completely eliminated."

Rudin also said the decision took away the power of courts and prosecutors to prevent malicious prosecution claims from criminal defendants by dismissing their cases without explanation.

"It just completely takes that out of the equation," he said.

What Is Malicious Prosecution?

Malicious prosecution is a state law tort. It can also fit within a Fourth Amendment claim — a person seized without due process — that can be litigated in federal court. Section 1983 of Title 42 of the U.S. Code allows individuals to sue state government employees for damages over civil rights violations, including malicious prosecution.

However, in a 1994 ruling in Heck v. Humphrey , the Supreme Court said criminal defendants could not sue under Section 1983 without first proving that their criminal proceedings ended "in favor of the accused." In that specific case, it meant that conviction had to be overturned on direct appeal, expunged, invalidated though a pardon, or thrown into doubt by a writ of habeas corpus.

But in applying that ruling to malicious prosecution, seven U.S. Courts of Appeals expanded the favorable termination doctrine to require an affirmation of innocence. The Second Circuit, the court where Thompson's case played out, was one of them.

The Eleventh Circuit, on the other hand, adopted a lower standard: a plaintiff only had to show that the criminal prosecution ended without a conviction. The other five courts never ruled on the question.

In Monday's decision in Thompson v. Clark, the Supreme Court zeroed in on the favorable termination requirement for the first time in the context of malicious prosecution, to address the split. In the end, the court adopted the Eleventh Circuit rule.

Larkin, the civil rights attorney, previously defended police and correctional officers at the New York City Law Department. He said the court's decision was easy to understand and to apply across the nation, and "lets courts get right to the merits of the claim."

"The court basically said, 'Look, we're not going to get into the reasons why a criminal case was terminated. All we're going to do is ask one very simple question: Has the criminal case ended or not?'" Larkin said. "If the criminal case has ended, then as long as it didn't end in a conviction, the plaintiff can bring a malicious prosecution case."

Rudin, who has litigated cases involving favorable termination issues, including a win in the Second Circuit in August on a case involving evidence fabrication claims, said the ruling in Thompson's case allows for a smoother interplay between malicious prosecution elements in common law and the Heck v. Humphrey decision, which spells out how Fourth Amendment claims arise in that context.

"The Supreme Court has harmonized the two strands of the law," Rudin said. "If there's a prosecution without probable cause, you have a malicious prosecution or a Fourth Amendment claim."

In his dissenting opinion, Justice Samuel Alito attacked that notion, saying the majority had molded together common law and constitutional law claims without careful consideration. Justice Alito likened the reasoning to a Homerian "mythical chimera."

"Today, 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," says the opinion, which was joined by Justices Clarence Thomas and Neil Gorsuch. "In fact, the Fourth Amendment and malicious prosecution have almost nothing in common."

But Rudin said Justice Kavanaugh's reasoning in the majority opinion appeared to show that the court is viewing the claim for a prosecution without probable cause as a Fourth Amendment claim.

What triggers the claim is a seizure of a person without probable cause. When the seizure occurs before the initiation of a prosecution, it is called a false arrest. When it occurs with or after the initiation of a criminal case, it becomes a malicious prosecution.

In the Thompson case, the Supreme Court is bringing the civil claim for malicious prosecution in line with the elements of a Fourth Amendment violation.

Malicious prosecution claims, under common law and Section 1983, have traditionally included the requisite element of bad faith or malice, but the court's reliance on a strict Fourth Amendment analysis of whether, objectively, there was an absence of probable cause suggests that it may soon do away with the subjective malice requirement entirely, Rudin said.

"I'm not sure how long the concept of malicious prosecution is going to last," he said. "There may very well be a majority on the Supreme Court that now agrees that for a Fourth Amendment claim for wrongful prosecution, there's no longer a requirement of bad intent or malice."

Larkin said the decision in Thompson v. Clark could still leave some questions unanswered, particularly for malicious prosecution plaintiffs whose criminal cases ended with mixed verdicts.

"They were convicted of certain charges and acquitted of other charges — what happens in that situation?" Larkin said. "It's an interesting, developing area."

The Originalist Argument That Earned a Majority

In October, when he argued on behalf of Thompson, Amir Ali of the MacArthur Justice Center asked the high court to look at American common law as it was in 1871, at the time Section 1983 was enacted, and see that no affirmation of innocence had ever been required in suits involving malicious prosecution claims.

In the majority opinion, Justice Kavanaugh said the court did exactly that.

"The American tort law consensus as of 1871 did not require a plaintiff in a malicious prosecution suit to show that his prosecution ended with an affirmative indication of innocence," but only that the prosecution ended without a conviction, the opinion says.

The court ultimately applied that standard to Thompson's case, in line with what the Eleventh Circuit had concluded in 2020 in deciding Laskar v. Hurd .

Rudin said Ali's approach might have proven successful in earning the votes of two appointees of President Donald Trump, Justices Amy Coney Barrett and Kavanaugh, who are widely considered to have an originalist view of the law. He also noted that Monday's decision was the second involving a Section 1983-related question to include Chief Justice John Roberts and Justice Kavanaugh in the majority.

"It's interesting that there seems to be a sympathetic ear at the Supreme Court for 1983 claims, so long as they're grounded in history," he said.

In a phone call with Law360, Ali called Monday's decision "completely correct" and said it came at a time of concern over accountability for government misconduct.

"We were right on the law. We were right on the history. And we were right on common sense," Ali said. "I think that was the reason that it ended up as a significant majority, and not a close opinion."

--Editing by Marygrace Anderson and Karin Roberts.

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