Trial Magazine

This spring, the U.S. Supreme Court decided Thompson v. Clark,¹ a case with several important implications for civil rights law—particularly for those who allege they were wrongfully prosecuted. The decision may be broad, making the specific circumstances of the case less important. However, it’s worth briefly reviewing the facts before addressing the decision’s noteworthy dicta and critical holding, which resolved a circuit split over malicious prosecution claims.

The plaintiff, Larry Thompson, lived with his then fiancée and their newborn child in an apartment in New York City.² Thompson’s sister-in-law, who suffered from mental illness, also lived in the apartment, and on the evening in question, she called 911 and reported that Thompson was sexually abusing his infant daughter.³ Two EMTs responded in person and spoke with Thompson, who denied that anyone at the apartment had called 911.⁴ The EMTs left and alerted law enforcement officers of the situation.⁵

The EMTs then returned to the apartment, accompanied by four police officers.⁶ Thompson again spoke with them but denied them entry to the apartment without a warrant.⁷ The police officers entered the apartment, however, causing a brief scuffle with Thompson that eventually led to him being handcuffed.⁸

The EMTs examined Thompson’s daughter and observed red marks on her body.⁹ They took her to the hospital for further assessment, and medical staff determined that the red marks were nothing more than diaper rash.¹⁰

Meanwhile, the officers arrested Thompson for resisting their entry and took him to a local hospital and then jail.¹¹ Thereafter, Thompson was charged with obstructing government administration and resisting arrest.¹² After being in custody for two days, Thompson was released.¹³

The prosecutor moved to dismiss the charges pretrial, and the judge granted the motion.¹⁴ Neither the prosecutor nor the court provided any explanation as to why those actions were taken.¹⁵ Following the dismissal, Thompson sued Clark and the other officers in New York federal district court pursuant to 42 U.S.C. §1983.¹⁶ Thompson asserted various §1983 claims, including allegations that the officers “‘maliciously prosecuted’ him and ‘subjected him to an unlawful, illegal and excessive detention’ in violation of his Fourth Amendment rights.”¹⁷

Circuit Split

At the time of Thompson’s suit, the law concerning Fourth Amendment malicious prosecution claims was unsettled—circuit courts were divided over the elements of the claim¹⁸ and how they applied such claims to particular fact patterns.¹⁹ At least one circuit court had even concluded that such a claim was not cognizable under the Fourth Amendment.²⁰

In the Second Circuit, where Thompson brought his case, a Fourth Amendment malicious prosecution claim consisted of proving “a seizure or other perversion of proper legal procedures implicating [the plaintiff’s] personal liberty and privacy interests.”²¹ Under this precedent, plaintiffs bringing Fourth Amendment malicious prosecution claims were required to prove that legal proceedings had terminated in a manner that “affirmatively indicated” the plaintiff’s innocence.²² Thompson, however, could not offer any substantial evidence explaining the reason for the dismissal of the criminal charges against him.²³ Consequently, the district court ruled for the defendants on that claim, finding that Thompson’s criminal case had not ended in a way that affirmatively indicated his innocence; the Second Circuit affirmed.²⁴

At the time of this ruling, the majority of circuit courts had adopted the same standard as the Second Circuit.²⁵ That is to say, most federal courts followed a rule whereby plaintiffs could not merely demonstrate that proceedings had ended in some manner other than a conviction. Rather, the record had to contain some affirmative indicia that the plaintiff’s innocence was the basis for the termination, such as a jury acquittal or the prosecution dismissing the charges specifically because the plaintiff was innocent.

The Eleventh Circuit, however, had broken ranks and in a well-reasoned 2020 opinion ruled that finding “favorable termination” did not require affirmative evidence of innocence.²⁶ Rather, the court defined “favorable termination” as any conclusion of the criminal proceedings other than a conviction, so long as the manner of termination was “not inconsistent with the plaintiff’s innocence.”²⁷ Under that standard, a “formal end to criminal proceedings [would] satisfy this standard unless it precludes any finding that the plaintiff was innocent of the charges that justified his seizure, which occurs only when the prosecution ends in the plaintiff’s conviction on or admission of guilt to each charge that justified his seizure.”²⁸

SCOTUS Weighs In

Following the Second Circuit’s ruling, Thompson appealed to the Supreme Court, urging it to resolve the circuit split and adopt the Eleventh Circuit’s view.²⁹

In April 2022, the Court issued its decision, with the majority authored by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett.³⁰ Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.³¹

As a preface to its analysis of the “favorable termination” element, the majority affirmatively answered what had been an open question regarding whether a claim for malicious prosecution exists under the Fourth Amendment. It then formally defined the three elements of the claim:

• The suit or proceeding was instituted without any probable cause.
• The motive in instituting the suit was malicious (often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice).
• The prosecution terminated in the acquittal or discharge of the accused.³²

Although this recognition of a Fourth Amendment malicious prosecution claim reads as little more than a passing reference, the dissent appreciated the significance of the Court’s holding in this respect and leveled no small amount of criticism at the decision.³³

After conclusively establishing that the Fourth Amendment allows for recovery under the theory of malicious prosecution, the Court resolved the circuit split over the favorable termination requirement, ruling in Thompson’s favor that proof of a favorable termination of criminal proceedings merely required demonstrating that those proceedings had ended in some way other than a conviction.³⁴

Takeaways

The holding in Thompson is a significant one that will change the law in the majority of circuits by lowering the burden of proof associated with Fourth Amendment malicious prosecution claims. Keep in mind two practical considerations with respect to §1983 malicious prosecution claims in the post-Thompson era.

Qualified immunity. While Thompson clarified the legal standard for Fourth Amendment malicious prosecution claims going forward, the decision will not apply to conduct that occurred prior to its release. This is because of the qualified immunity doctrine, which provides that officials can be held liable only if their alleged actions run afoul of “clearly established law”—existing precedent putting the unlawfulness of the officer’s conduct beyond debate at the time the conduct occurred.³⁵ Accordingly, even after a change or clarification to substantive constitutional law, the “clearly established” prong of the qualified immunity analysis requires courts to test the challenged conduct against the law as it existed at the time of the alleged wrongdoing.³⁶

Nevertheless, resist any defense efforts to argue that the qualified immunity analysis requires pre-Thompson malicious prosecution conduct to be judged by the higher “favorable termination” standard set forth in most pre-Thompson law. For example, in a jurisdiction that adhered to the prevailing pre-Thompson definition of a favorable termination, an unexplained nolle prosequi (decision not to prosecute) would have been insufficient to satisfy the favorable termination element.

In such a case, be ready for defendants to argue that it was not clearly established law at the time of their alleged wrongdoing that the plaintiff had a Fourth Amendment right not to be maliciously prosecuted under circumstances when the underlying criminal action terminated in such a manner.

However, qualified immunity protects officials from liability when the existing body of controlling law does not put them on notice as to the illegality of their conduct.³⁷ Given that the clarification provided in Thompson did not change or in any way impact the legal standard for assessing the wrongfulness of an officer’s actions, applying the Thompson “favorable termination” standard in a qualified immunity analysis involving pre-Thompson malicious prosecution claims would not defeat the doctrine’s policy goals.

That is to say, circuit case law delineating the type of official conduct giving rise to Fourth Amendment malicious prosecution claims continues to be controlling law in the post-Thompson era. Requiring that plaintiffs only demonstrate a favorable termination as defined by Thompson (rather than some higher standard) when conducting the first prong of the analysis does not risk an officer being held liable for different conduct than under the pre-Thompson standard.³⁸

Fourteenth Amendment. Also take note of the Court’s dicta acknowledging the possibility of a different type of malicious prosecution claim. Specifically, the Court mentioned Justice Anthony Kennedy’s concurring opinion in Albright v. Oliver, which reasoned that a malicious prosecution claim could also be available under the Fourteenth Amendment’s due process clause.³⁹ The Thompson Court postulated that, unlike a Fourth Amendment claim, a Fourteenth Amendment malicious prosecution claim could ostensibly be actionable without proof that a seizure occurred.⁴⁰

Remain open to the possibility of accepting a case that would allow law on this issue to be developed.⁴¹ This can be difficult because attempts to bring a novel malicious prosecution claim under the Fourteenth Amendment would, by definition, not be grounded in clearly established law.⁴² For that reason, the ideal case to advance the law would likely involve a private citizen who acted in concert with a state actor to advance the prosecution.

Under such circumstances, the private citizen could be said to have acted “under color of state law” for purposes of §1983 and thus would also be liable for the constitutional violation. However, unlike a public employee, a private joint participant to the prosecution likely would be unable to assert qualified immunity. Consequently, the court could not simply bypass the merits question and terminate the case on the basis that there was no clearly established right to be free from malicious prosecution at the time the person was prosecuted.

Moreover, even for public employees who could assert qualified immunity, it could be argued that Fourth Amendment malicious prosecution case law provides notice to officers that initiating criminal proceedings without probable cause is illegal. They should not escape liability for doing so simply because their wrongful actions did not result in a seizure.

Many other interesting nuances and questions raised by Thompson will undoubtedly be explored in forthcoming articles and case law. For now, take note of the decision, and survey your possible cases in light of it, because it potentially animates a number of fact patterns that previously would have been untenable. Also consider exploring cases that can develop Fourteenth Amendment malicious prosecution law, providing more opportunities to hold police accountable in the future.

Jonathan Halperin is the founder of and Isaac McBeth is an attorney at Halperin Law Center in Glen Allen, Va. They can be reached at jonathan@hlc.law and isaac@hlc.law.

Notes

1. 142 S. Ct. 1332 (2022).
2. Id. at 1335.
3. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id. at 1335–36.
9. Id. at 1336.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id. The essence of this claim is that the initiation of criminal proceedings without probable cause subjected the plaintiff to a “seizure” within the meaning of the Fourth Amendment. Id. at 1337 n.2.
18. See Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (addressing the substantive differences between the two approaches applied by circuits).
19. For example, the Sixth Circuit has held that a claim will fail if even one of the charges brought against the defendant is supported by probable cause, whereas the Second Circuit allows a claim to go forward if even one of the charges initiated is unsupported by probable cause. Howse v. Hodous, 953 F.3d 402, 408, 409 n.3 (6th Cir. 2020) (citing Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991).
20. See, e.g., Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018).
21. Lanning v. City of Glens Falls, 908 F.3d 19, 24 (2d Cir. 2018).
22. Id. at 28.
23. Thompson, 142 S. Ct. at 1336.
24. Id.
25. See Jones v. Clark Cty., 959 F.3d 748, 763–64 (6th Cir. 2020); Salley v. Myers, 971 F.3d 308, 313 (4th Cir. 2020); Jordan v. Town of Waldoboro, 943 F.3d 532, 545–46 (1st Cir. 2019); Cordova v. City of Albuquerque, 816 F.3d 645, 650–51 (10th Cir. 2016); Kossler v. Crisanti, 564 F.3d 181, 186–87 (3d Cir. 2009) (en banc) (citations omitted); Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004).
26. Laskar v. Hurd, 972 F.3d 1278, 1289 (11th Cir. 2020).
27. Id.
28. Id. at 1295.
29. Brief for Petitioner Thompson, 2021 WL 2394386 (2021).
30. Thompson, 142 S. Ct. at 1334.
31. Id.
32. Id. at 1338 (internal quotations omitted).
33. Id. at 1345–46 (Alito, J., dissenting).
34. Id. at 1335, 1341.
35. See Reichle v. Howards, 566 U.S. 658, 664 (2012). The defense of qualified immunity implicates a two-part analysis: “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was ‘clearly established’ at the time of the defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 224 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001). A court may perform this analysis in any order it sees fit, including bypassing the first inquiry and beginning with the question of whether the right at issue was clearly established at the time of the challenged conduct. Id. at 236.
36. However, because the merits of the plaintiff’s claim should be judged by the substantive legal standard existing at the time of trial, not at the time that the cause of action arose, courts sometimes confuse which legal standard to charge a jury with. See Mays v. Sprinkle, 992 F.3d 295, 301–02 (4th Cir. 2021) (discussing what legal standards would apply in the context of qualified immunity given the possibility that the standard of liability for the plaintiff’s Fourteenth Amendment claim had changed).
37. See Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Saucier, 533 U.S. at 205.
38. See Saucier, 533 U.S. at 201 (establishing that the first prong of qualified immunity involves assessing whether the violation of a constitutional right occurred).
39. 510 U.S. 266; Thompson, 142 S. Ct. at 1337 n.2.
40. Id.
41. In some jurisdictions, malicious prosecution claims brought under the Fourteenth Amendment will be barred because a statutory state remedy exists. See, e.g., Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013), amended on denial of reh’g (Jan. 8, 2014) (“The district court rightly rejected [plaintiff’s] Fourteenth Amendment malicious-prosecution claim under 42 U.S.C. §1983 because Colorado law provides an adequate remedy. . . . The existence of the state remedy flattens the Fourteenth Amendment peg on which [plaintiff] now tries to hang his §1983 malicious-prosecution claim.”).
42. See, e.g., Reichle, 566 U.S. at 664 (a First Amendment retaliatory arrest claim for an arrest supported by probable cause had not been previously recognized by the Court and was not clearly established law).