Supreme Court rewrites the law of malicious prosecution

The Supreme Court has ruled that you can bring a malicious prosecution claim if you are arrested without probable cause and the case does not end in a conviction. This ruling overturns decades of law in the Second Circuit, which had held that these cases cannot proceed unless the plaintiff can show the case ended in a manner that indicated the plaintiff was innocent of the underlying criminal charges.

The case is Thompson v. Clark, issued on April 4. Justice Kavanaugh wrote for the 6-3 majority. Malicious prosecution claims are usually brought in tandem with false arrest claims, but they differ in that damages for false arrest end once the police confine you, and malicious prosecution claims cover the post-arraignment period through the prosecution itself. Many malicious prosecution claims were dismissed over the years because the criminal defendant took an Adjournment in Contemplation of Dismissal (ACD) or the charges were dismissed "in the interests of justice." Most criminal defendants just want to the criminal case to go away, so they often took an ACD without realizing they were waiving their rights to bring a malicious prosecution claim. Since malicious prosecution cases cannot proceed unless the case terminated in the defendant's favor, ACD's and "interest of justice" dismissals usually did not qualify as a favorable termination.

The Court takes a fresh look at this issue and finds that state courts in the 1800s said that a favorable termination for malicious prosecution means the case ended without a conviction. This was the state of American tort law in 1871, when Congress enacted Section 1983, the federal civil rights statute that allows you to enforce the Constitution. Over the years, though, federal courts said there is no "favorable termination" unless the case ended in a manner indicating the defendant was innocent. The influentual Restatement on Torts also took that view in 1976, but the Court rejects that interpretation because it does not purport to describe the consensus in 1871. (The Supreme Court rarely disregards the Restatement's analysis). For the Court, "the status of American law in 1871 is the relevant inquiry for our purposes." Since American tort law allows you to bring a malicious prosecution claim so long as the case ended without a conviction, the Court applies that test to Section 1983 claims also.

The case is thus remanded to the lower courts, and the Second Circuit ruling in this case is overturned. The Court notes that the officers in this case may still assert the defense of qualified immunity. Immunity is a possibility for the officer. Qualified immunity attaches when the state of the law is not clearly established. Since most malicious prosecution plaintiffs sue for damages, officers often receive immunity in damages claims when the case law was not clear on this issue. Since the Supreme Court is making new law on this issue, at least in the Second Circuit, and governmental defendants are not expected to anticipate future changes in the law, the lower courts might grant the defendant immunity from suit.