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April 4, 2022

SCOTUS, via 6-3 ruling in Thompson v. Clark, clarifies requirements for certain § 1983 claims for malicious prosecution

The Supreme Court handed down one opinion this morning, and it concerns criminal justice issues.  Justice Kavanaugh wrote the relatively short opinion (12 pages) for the Court in Thompson v. Clark, No. 20-659 (S. Ct. April 4, 2022) (available here), and it begins this way:

Larry Thompson was charged and detained in state criminal proceedings, but the charges were dismissed before trial without any explanation by the prosecutor or judge.  After the dismissal, Thompson alleged that the police officers who initiated the criminal proceedings had “maliciously prosecuted” him without probable cause.  App. 33–34.  Thompson sued and sought money damages from those officers in federal court. As relevant here, he advanced a Fourth Amendment claim under 42 U.S.C. § 1983 for malicious prosecution.

To maintain that Fourth Amendment claim under §1983, a plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution.  Cf. Heck v. Humphrey, 512 U.S. 477, 484, and n. 4 (1994).  This case requires us to flesh out what a favorable termination entails.  Does it suffice for a plaintiff to show that his criminal prosecution ended without a conviction?  Or must the plaintiff also demonstrate that the prosecution ended with some affirmative indication of his innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient?

We conclude as follows: 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.  Thompson satisfied that requirement in this case.  We therefore reverse the judgment of the U.S. Court of Appeals for the Second Circuit and remand for further proceedings consistent with this opinion.

Justice Alito also wrote a 12-page opinion as a dissent, and it was joined by Justices Thomas and Gorsuch.  Here is how it starts:

Homer described the mythical chimera as a “grim monster” made of “all lion in front, all snake behind, all goat between.” The Iliad p. 201 (R. Fagles trans. 1990).  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.

The Court justifies this creation on the ground that malicious prosecution is the common-law tort that is most analogous to an unreasonable seizure claim.  And because a common-law malicious-prosecution claim demanded proof of a favorable termination, the Court holds that its new creation includes that element.  But this Court has never held that the Fourth Amendment houses a malicious-prosecution claim, and the Court defends its analogy with just two sentences of independent analysis and a reference to a body of lower court cases.

I cannot agree with that approach.  The Court’s independent analysis of this important question is far too cursory, and its reliance on lower court cases is particularly ill-advised here because that body of case law appears to have been heavily influenced by a mistaken reading of the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994).

What the Court has done is to recognize a novel hybrid claim of uncertain scope that has no basis in the Constitution and is almost certain to lead to confusion.

April 4, 2022 at 10:21 AM | Permalink


I think this case is less than meets the eye. At the proverbial end of the day, the plaintiff is still going to have to prove malice in order to show a malicious prosecution, and proving it is likely to have its complications if his behavior was even arguably criminal. If it wasn't even arguably criminal, then it's probably just that the government should lose.

Posted by: Bill Otis | Apr 4, 2022 11:38:50 AM

A dismissal is absolutely a favorable termination. I assume a defense lawyer would tell you that in general a dismissal before trial is better than a not guilty verdict. So parsing this language any other way would be absurd.

Posted by: William C Jockusch | Apr 4, 2022 1:51:30 PM

Nice opinion! Although many hurdles remain, good for citizens who are unjustly arrested.

Posted by: Michael R. Levine | Apr 4, 2022 2:03:07 PM

Not sure how Justice Alito accounts for Heck in his claim that this new tort was just recognized by this decision.

Favorable termination (and opinions like Heck) is/was just a way to weed out the malicious prosecution claims filed by those who were found guilty (which showed that the prosecutions in fact had merit making any tort claim frivolous). I am not sure how many more 1983 cases would be filed if Heck did not make it easy to dismiss cases filed by convicted offender. As I occasionally see one or two complaints by convicted offender when this bar exists, I am sure that it would increase if defendants did not have to first challenge the conviction.

There are still two big hurdles for any would-be plaintiff to overcome -- 1) showing that the criminal case lacked merit (i.e. no probable cause for the charges); 2) showing that the lack of merit was so clear under existing law that any reasonable law enforcement officer would have known that it was improper to arrest defendant or refer him for prosecution (i.e. qualified immunity). But this win is probably enough to get defendants who managed to get their charges dismissed enough to survive a motion to dismiss even though chances of surviving a summary judgment motion is still slim bordering on none.

Posted by: tmm | Apr 4, 2022 5:07:56 PM

tmm --

"But this win is probably enough to get defendants who managed to get their charges dismissed enough to survive a motion to dismiss even though chances of surviving a summary judgment motion is still slim bordering on none."


Posted by: Bill Otis | Apr 4, 2022 5:42:56 PM

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