Thompson v. Clark: the tort of malicious prosecution loses its malicious requirement of proving that prosecution ended with an affirmative indication of innocence
On April 4, 2022, the United States Supreme Court published its opinion of Thompson v. Clark,[1] and not a moment too soon. The last several years have shed light on government employees’ egregious abuses of powers and the gross injustices that result. Among the many cases of abuse of power are those employed by some prosecutors or members of law enforcement – for prosecuting individuals in bad faith. Under 42 U.S.C. § 1983,[2] individuals may bring a civil lawsuit against those who wrongfully initiated charges against them without probable cause by employing the tort of malicious prosecution.[3]
Larry Thompson pursued this avenue following his troubling arrest and prosecution.[4] In January 2014, Thompson, who lived with his fiancée (now wife), was visited by two emergency medical technicians (EMTs) after a disturbing 911 call was placed, alleging that Thompson was sexually abusing his infant daughter.[5] Thompson’s sister-in-law, who was staying with them at the time and apparently suffered from a mental illness, made the call.[6] The two EMTs later returned with four police officers.[7] Despite Thompson’s refusal to allow the group into his home without a warrant, the police officers forcibly entered and handcuffed Thompson.[8] The EMTs entered as well and began examining the baby’s body, where they found red marks.[9] The EMTs then took the baby to the hospital for evaluation, where medical professionals determined the red marks were diaper rash and found no signs of abuse.[10]
The police arrested Thompson “for resisting their entry” into his home and placed him into custody for two days.[11] Meanwhile, one of the police officers “prepared and filed a criminal complaint charging Thompson with obstructing governmental administration and resisting arrest.”[12] Prior to trial, a judge granted the prosecution’s motion to dismiss Thompson’s case.[13] Neither the prosecutor nor the trial judge provided an explanation as to why they moved to dismiss and grant the motion.[14] Following dismissal, Thompson filed suit under 42 U.S.C. § 1983 “against the officers who had arrested and charged him,” alleging a Fourth Amendment claim for “malicious prosecution,” among other constitutional claims.[15] Thompson asserted that the officers “maliciously prosecuted” him and “subjected him to an unlawful, illegal and excessive detention” in violation of his Fourth Amendment rights.[16]
To successfully establish a claim for malicious prosecution, a plaintiff must demonstrate that: (1) the suit was “‘instituted without any probable cause’; (2) the ‘motive in instituting’ the suit ‘was malicious,’ . . . and (3) the prosecution ‘terminated in the acquittal or discharge of the accused.’”[17] The third element, requiring favorable termination, was at the center of the dispute between the parties in Thompson.[18]
Second Circuit precedent required that for a claimant to satisfy the favorable termination requirement, he must prove that the criminal proceedings against him terminated in a way that indicated his innocence.[19] Adhering to this precedent, the District Court granted judgment to the defendant officers, ruling that Thompson’s criminal case “had not ended in a way that affirmatively indicated his innocence” because he could not evince two things: (1) why the prosecutor had moved to dismiss his charges; and (2) why the trial court had dismissed the charges.[20] On appeal, the Second Circuit affirmed the dismissal of Thompson’s claim on the same grounds.[21] The Supreme Court granted certiorari because the parties’ arguments reflected a split amongst the Courts of Appeals on how to apply the favorable termination requirement.[22] Unlike the Second Circuit, the Eleventh Circuit Court of Appeals has held that “the favorable-termination element requires only that the criminal proceedings against the plaintiff formally end in a manner not inconsistent with his innocence on at least one charge that authorized his confinement.”[23]
In a 6-3 decision, the Supreme Court sided with the Eleventh Circuit, holding that “a Fourth Amendment claim under § 1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence.”[24] Writing for the majority, Justice Kavanaugh emphasized how this result is aligned with “the American tort-law consensus as of 1871” – when the tort of malicious prosecution was born – as well as with “the values and purposes” of the Fourth Amendment.[25] Since 1871, most courts that considered the favorable termination requirement of the tort of malicious prosecution held that the claim was satisfied if the prosecution ended without a conviction.[26] The “‘technical prerequisite’ is only that the particular prosecution be disposed of in such a manner that it ‘cannot be revived.’”[27]
Justice Alito, with Justices Thomas and Gorsuch joining him, dissented. In their view, the majority’s decision created a “grim monster” by morphing together the elements of “a Fourth Amendment unreasonable seizure claim and a common law malicious-prosecution claim.”[28] Justice Alito’s primary focus is the fact that there is no overlap between the elements of the two claims.[29] To this point, he is correct in identifying the distinction between the two: the cause of action for malicious prosecution is based on the conduct of prosecuting the action, while the cause of action for a violation of rights under the Fourth Amendment is based on the arrest. Usually, the actors in each context are distinct – the former being prosecutors, while the latter being police officers.
Despite this, the dissent sidesteps an important factual distinction that perhaps sets this case apart from other malicious prosecution cases: those who instigated the arrest, the police officers, also instigated the alleged malicious prosecution.[30] In such situations, a malicious prosecution case can be brought against police officers if they “instigate” the prosecution.[31] Moreover, regardless of whether prosecuting attorneys or police officers instigate the prosecution, there remains a connection to a Fourth Amendment violation of constitutional rights because the arrest leading to the prosecution is rooted in the Fourth Amendment. The Court and its precedents recognize this nexus – “If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.”[32]
The outcome of this case will give claimants pursuing § 1983 claims for malicious prosecution a fighting chance. Justice Kavanaugh implies this in his majority opinion, noting how unreasonable it would be for an individual to rely on a prosecutor or court to explain why criminal charges against him or her were dismissed.[33] To require that would simply be unrealistic and unfair, because it is unlikely that the prosecution would ever be forthcoming with such information.[34]
While, in theory, removing the affirmative indication of innocence condition of the favorable termination requirement will ease the burden for claimants pursuing § 1983 claims for malicious prosecution, individuals pursuing such claims, in general, still have high hurdles to jump.
Perhaps the highest hurdle that remains in place is qualified immunity.[35] Qualified immunity is a judicially created doctrine that shields government officials “from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[36] Because defeating the qualified immunity defense to liability has proven to be so difficult,[37] the result of this case likely will be rather minimal. If anything, the outcome of Thompson will likely permit litigation to continue longer than it would have in the past. Despite the many obstacles plaintiffs pursuing civil claims against government employees must overcome, the Supreme Court has noted that civil liability is an “effective deterrent” to misconduct.[38] An additional outcome of Thompson perhaps may be that the bark of the “effective deterrent” now has more of a bite, since the malicious requirement of proving that the prosecution ended with an affirmative indication of innocence has been abrogated. In other words, perhaps the outcome of Thompson has leveled the playing field a bit.
[1] Thompson v. Clark, 142 S.Ct. 1332 (2022).
[2] See e.g. Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017) ( 42 U.S.C. § 1983 “entitles an injured person to money damages if a state official violates his or her constitutional rights.”)
[3] Thompson,142 S.Ct. at 1337-38.
[4] Id. at 1335.
[5] Id.
[6] Id.
[7] Id.
[8] Thompsson v. Clark (U.S. Supreme Court), Roderick & Solange MacArthur Justice Center, https://www.macarthurjustice.org/case/thompson-v-clark-u-s-supreme-court/
[9] Thompson,142 S.Ct. at 1336.
[10] Neda Khoshkhoo and Caitlyn Glass, POV: Why Thompson v. Clark Matters for Racial Justice, BU Today (Oct. 12, 2021), https://www.bu.edu/articles/2021/thompson-v-clark-matters-for-racial-justice.
[11] Thompson,142 S.Ct. at 1336.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 1338.
[18] Id.
[19] Lanning v. City of Glens Falls, 908 F.3d 19, 29 (2d Cir. 2018), abrogated by Thompson v. Clark, 142 S.Ct. 1332 (2022).
[20] Id. at 1336. In dismissing the charges against Thompson, the court expressed “that the relevant Second Circuit precedent ‘can and should be changed’ to say that a favorable termination occurs so long as the prosecution ends without a conviction.’”
[21] Id.
[22] Id.
[23] Laskar v. Hurd, 972 F.3d 1278, 1295 (11th Cir. 2020).
[24] Id. at 1341.
[25] Id. at 1340.
[26] Id. at 1338.
[27] Id. at 1338-39 (internal citations omitted).
[28] Id. at 1341.
[29] See Id. at 1341-42.
[30] Id. at 1336.
[31] See Dan B. Dobbs et. al, The Law of Torts § 587, (2d ed. 2021).
[32] Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 919 (2017).
[33] Thompson, 142 S. Ct. at 1340.
[34] Id.
[35] See Id. at 1340-41.
[36] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
[37] See Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797, 1798 (2018) (The Court's “recent qualified immunity decisions make it seem nearly impossible to find clearly established law that would defeat the defense.”); See White v. Pauly, 137 S. Ct. 548, 551 (2017) (“While this Court's case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate. In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law.”).
[38] Hudson v. Michigan, 547 U.S. 586, 598 (2006) (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2001)( “[T]he threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity.”)).