Tuesday, May 30, 2017

Fireworks guy cannot sue police for malicious prosecution

We all know that fireworks are illegal, but no one seems to get arrested for shooting them off. But this guy got arrested for trying to destroy the evidence when the police came after him because of the illegal fireworks. In the end, he brought a malicious prosecution case against the police, but it gets dismissed on what we might call a technicality.

The case is Spak v. Phllips, decided on May 22. Spak lives in Connecticut. He was arrested for destroying evidence related to the illegal discharge of fireworks. Following the arrest, the prosecutor entered a nolle prosequi, which is Latin for "the prosecutor can't be bothered with the case." I don't think such a procedure exists in New York criminal law, but in Connecticut, a nolle prosequi is not an outright dismissal with prejudice. Rather, the prosecutor can initiate a second prosecution at any time before the statute of limitations expires. If the prosecution abandons the case completely, then state law requires that the police and all court records of the arrest are erased within 13 months.

The problem for plaintiff is that the statute of limitations for a federal malicious prosecution case is three years. In order to bring a malicious prosecution case, you have to show the prosecution terminated in your favor. A nolle prosequi is a favorable termination under Connecticut law. This is the first time the Second Circuit has resolved that issue, a holding that is consistent with the Restatement on Torts and a Fourth Circuit ruling from 2014.

That holding is good for other plaintiffs, but it does not help the plaintiff in this case. The question is whether the plaintiff filed the case within the statute of limitations. The Court of Appeals (Walker, Cabranes and Berman [D.J.]) says he did not. The Circuit court says the statute of limitations on the malicious prosecution case began to accrue when the prosecutor entered the nolle prosequi, and not after the 13-month period expires, at which time the records have to be erased. Since plaintiff filed this action more than three years after the nolle prosequi, his claim is time-barred and the case is dismissed.

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