Supreme Court expands the claim for malicious prosecution

In a victory for plaintiffs, the Supreme Court has held that they can sue the police for malicious prosecution even if some the charges filed against an arrestee are supported by probable cause. 

The case is Chiaverini v. City of Napoleon, issued on June 20. Malicious prosecution claims may proceed against the police if they charge you with a crime without probable cause, and the plaintiff can also show the charges were motivated by malice. In the Second Circuit, malice may be proven by the lack of any probable cause. And you have to show the charges did not yield a criminal conviction. The question is whether you can bring a malicious prosecution claim if the police charge you with three offenses, two of which are supported by probable cause.

The reason this question arises is because the related claim of false arrest is defeated if the police had any objective basis to arrest you. So that if you are charged with trespass, and there is no probable cause for that charge, but the police could have charged you with resisting arrest, because they would have had probable cause to arrest you for that, then there is no false arrest claim. Some courts have held that malicious prosecution claims, like false arrest claims, will fail if any of the charges are supported by probable cause. The Sixth Circuit was one of those courts, and this case, arising from that Circuit, reaches the Supreme Court after the plaintiff, who owned a jewelry store, was arrested and charged with receiving stolen property and related charges, including money laundering. Plaintiff said the money laundering claim in particular lacked any probable cause. It's the money laundering claim that predicates the malicious prosecution case under Section 1983.

The Supreme Court rejects the false arrest theory of malicious prosecution. It thus holds that if a particular charge lacked any probable cause, then the plaintiff is eligible to sue for malicious prosecution even if the other charges might have been supported by probable cause. The Court reaches this holding upon reviewing Fourth Amendment caselaw and common-law principles. 

Justices Thomas and Alito dissent, taking a more far-reaching view: that the Fourth Amendment cannot support any claims for malicious prosecution, and that the only place for these claims is in state court. Justice Gorsuch also refers to this as "a new tort of [the Court's] own recent invention -- what it calls a 'Fourth Amendment malicious-prosecution cause of action.'"