The Supreme Court of the United States decided a malicious prosecution case earlier this month. The case is Thompson v. Clark, 596 U.S. __ (2022), and it has been the subject of some overheated media reports. For example, one outlet claimed that before Thompson, “[p]olice officers could frame people, file bogus charges, [and] conjure evidence out of thin air” yet “still be immune from facing any sort of civil accountability.” Billy Bunion, The Supreme Court Says You Can Sue Cops Who Frame You on False Charges (April 5, 2022). That’s not right, but Thompson is still an important opinion. This post will lay out the basics of malicious prosecution, explain what the Court did in Thompson, and offer some thoughts about the significance of the new ruling.
The basics of malicious prosecution
Malicious prosecution is a tort under North Carolina law. “To establish malicious prosecution, a plaintiff [for present purposes, a former criminal defendant] must show that the defendant [for present purposes, the arresting officer] (1) initiated or participated in the earlier proceeding, (2) did so maliciously, (3) without probable cause, and (4) the earlier proceeding ended in favor of the plaintiff.” Turner v. Thomas, 369 N.C. 419, 425 (2016). Malicious prosecution “is a theory applicable to criminal, civil, and administrative proceedings that have been instituted with malice and without probable cause.” 20A N.C. Index 4th Malicious Prosecution § 4 (Feb. 2022 update). As it pertains to criminal litigation, a malicious prosecution suit may be filed after a criminal defendant is acquitted or has charges dismissed.
Almost every state allows actions for malicious prosecution. See Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1657 (2013) (“The tort has been a focus of courts for nearly one thousand years, and . . . nearly every state has recognized a cause of action for malicious prosecution, as well as Puerto Rico and the District of Columbia.”).
The status of malicious prosecution under federal law has not been as settled. Some plaintiffs have brought such claims under 42 U.S.C. § 1983. That statute imposes civil liability on those who, “under color of” state law, deprive others of their federal constitutional rights. Historically, there was considerable disagreement about whether malicious prosecution claims under section 1983 are best viewed as allegations of Fourth Amendment violations – essentially, as unreasonable seizures – or whether they are best considered as alleged deprivations of due process. See generally Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment, 94 Notre Dame L. Rev. 1479 (2019). Then, in Albright v. Oliver, 510 U.S. 266 (1994), a plurality of the Court stated that “the Fourth Amendment, and not substantive due process” was the proper basis for malicious prosecution claims.
Although it pointed litigants in the direction of the Fourth Amendment, Albright left unresolved many questions about the details of malicious prosecution claims, resulting in circuit splits on multiple issues. McMannon, supra. The Fourth Circuit required that “the defendant . . . seized [the] plaintiff pursuant to legal process that was not supported by probable cause” and that “the criminal proceedings . . . terminated in plaintiff’s favor.” Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017).
The Thompson decision
The Thompson case began when Larry Thompson was living in a Brooklyn apartment with his fiancée, their infant daughter, and his sister-in-law. The sister-in-law called 911, alleging that Thompson was sexually abusing the baby. Two EMTs responded. Thompson denied abusing the child and turned them away. Four police officers came next, and Thompson told them that they could not enter without a warrant. They entered anyway, scuffled with Thompson, and handcuffed him. The EMTs then came in, found “red marks” on the baby, and took her to the hospital, where medical experts determined that the marks were diaper rash, not evidence of abuse. Meanwhile, the police arrested Thompson and charged him with “obstructing governmental administration and resisting arrest.” Thompson was jailed for two days before being released. The prosecutor ultimately dismissed the charges, and Thompson sued the officers.
He brought claims under section 1983 for unlawful entry, false arrest, excessive force, and malicious prosecution. The district court granted summary judgment to the officers on the malicious prosecution claim, relying on Second Circuit precedent that required a plaintiff to show that the underlying criminal prosecution ended with an affirmative indication of the defendant’s innocence, not just without a conviction. See Lanning v. Glens Falls, 908 F. 3d 19 (2d Cir. 2018). Thompson had a bare dismissal, which didn’t meet that standard. The remaining claims went to a jury, which returned a verdict in the officers’ favor. Thompson appealed the grant of summary judgment, arguing that a dismissal was a sufficiently favorable termination of the underlying criminal case to support a malicious prosecution claim.
A majority of the Supreme Court agreed. In an opinion by Justice Kavanaugh, the Court (1) either reaffirmed or recognized (depending on how one views the plurality opinion in Albright) the propriety of a Fourth Amendment malicious prosecution claim under section 1983; (2) reversed the Second Circuit and resolved a circuit split by holding that “a Fourth Amendment claim under [section] 1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence,” but rather, “[a] plaintiff need only show that the criminal prosecution ended without a conviction”; and (3) expressly dodged several other thorny questions, including whether some showing of actual malice is required, beyond a lack of probable cause, and whether due process might in some cases be an alternative basis for a malicious prosecution claim.
Justice Alito dissented, joined by Justices Thomas and Gorsuch. He argued that the Court had never previously recognized the viability of a malicious prosecution case under the Fourth Amendment and that it should not do so now. He reasoned that the Fourth Amendment protects against seizures, but that criminal prosecutions may begin without a seizure, as when a defendant is summoned to court. He viewed the Court as creating “a novel hybrid claim of uncertain scope that has no basis in the Constitution and is almost certain to lead to confusion.” If the history of malicious prosecution litigation in the federal courts is any guide, he’s probably right about the likelihood of confusion.
The impact of Thompson
I started this post with some hyperbolic language celebrating Thompson. On the other hand, I have heard that some officers and agencies are deeply concerned about the decision. They fear that every defendant whose charges are dismissed will now file a federal malicious prosecution claim against the arresting officer. I doubt that Thompson is quite as momentous as some on both sides believe.
To be clear, Thompson is important. It establishes a more plaintiff-friendly standard than the one previously applicable in the Fourth Circuit. See Salley v. Myers, 971 F.3d 308, 313 (4th Cir. 2020) (taking a position similar to the Second Circuit’s regarding the meaning of the favorable termination requirement by stating that “[t]he favorable termination element . . . is satisfied when the criminal case against the plaintiff has been disposed of in a way that indicates the plaintiff’s innocence,” and concluding that a simple dismissal alone is insufficient). Some former criminal defendants who were deterred from bringing malicious prosecution claims because of the Fourth Circuit’s prior interpretation of the favorable termination requirement may now decide to go forward. But I suspect that the increase in claims will be modest, for two reasons.
First, there isn’t a huge amount of malicious prosecution litigation under state law, even though our supreme court had already adopted the Thompson standard for purposes of state tort law. “[A] plaintiff in a malicious prosecution case has shown a favorable termination of a criminal proceeding when he shows that the prosecutor voluntarily dismissed the charges against him.” Jones v. Gwynne, 312 N.C. 393, 400 (1984) (citation omitted) (continuing to explain that “[t]he essential thing is that the prosecution on which the action for damages is based should have come to an end,” and that “[h]ow it came to an end is not important”). In other words, North Carolina already had the Thompson rule but there has been no tidal wave of malicious prosecution claims under state law.
Second, while Thompson does change the governing standard for malicious prosecution claims brought under section 1983, there are still significant obstacles in the path of a potential plaintiff. Some are practical, like the difficulty of finding an attorney willing to take on complex federal litigation of this kind, perhaps on a contingent fee basis. Some are factual, like the difficulty of establishing that an officer acted without probable cause. And some are legal, like the doctrine of qualified immunity, which shields officers from liability unless it is clearly established that their conduct violated the law. The uncertain role of malice in a section 1983 malicious prosecution claim is another potential barrier to successful claims.
All in all, as one veteran litigator put it, “[b]ecoming a civil rights plaintiff is not for the faint of heart.” I think that’s still true after Thompson. The road has become a little easier for prospective plaintiffs, but “easier” does not mean easy.