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High Court Considers Interplay of Federal Civil Rights Law and Malicious Prosecutions

Following a (mistaken) report of child abuse, New York City police officers forcibly entered the home of Larry Thompson without a warrant. He was arrested, jailed, and charged with resisting arrest and obstructing governmental administration. Thompson remained in jail for two days. Eventually, authorities realized that the suspected child abuse was simply diaper rash. Prosecutors then asked a judge to dismiss the criminal charges “in the interests of justice,” and Thompson returned home. He filed a civil lawsuit alleging the deprivation of his civil rights under 42 USC Section 1983—namely, his Fourth Amendment rights against unreasonable seizure via legal process (essentially, malicious prosecution).

In order to succeed on his claim, Thompson would need to establish the “favorable termination” of the legal proceedings against him. This might seem simple, inasmuch as prosecutors acknowledged that the criminal charges against him should be dismissed “in the interests of justice.” The relevant legal standard might require more. Courts across the country are divided on the contours of the “favorable termination” requirement; some courts require that criminal proceedings ended in a manner that affirmatively indicates innocence, while other courts ask only whether a criminal case ended in a manner “not inconsistent with innocence.”

Thompson had the bad fortune to bring his case to New York. The district court applied the governing standard in the US Court of Appeals for the Second Circuit—the affirmative-indications-of-innocence standard—and held that Thompson failed to prove the dismissal of his charges affirmatively proved innocence. The Second Circuit affirmed this ruling on appeal.

The US Supreme Court agreed to review Thompson’s case and bring clarity to this area of ​​law. Thompson asked the court to define “favorable termination” as any resolution that does not end in conviction. He claimed that this approach avoids parallel criminal and civil litigation on the same matters, and it protects against inconsistent judgments and collateral attacks on criminal judgments. Moreover, the harsher affirmative-indications standard would have the perverse effect of forcing innocent defendants to object to the complete dismissal of charges against them and continue to trial in order to prove innocence. The United States, as amicus curiae, supported Thompson’s view of the governing standard.

The defendants focused their attack on a more fundamental aspect of Thompson’s Section 1983 claim. They argued that his claims were rooted in the common-law tort of malicious prosecution, which addresses conduct that is not covered by the Fourth Amendment’s prohibition on unreasonable searches and seizures. Alternatively, the defendants argued that the favorable termination standard should require affirmative indications of innocence demonstrating that the criminal charges lacked merit. From a policy standpoint, they argued, a stringent requirement is needed to prevent frivolous claims from flooding the courts.

At oral argument on Oct. 12, 2021, Justice Clarence Thomas seemed intrigued by the defendants’ argument. He asked Thompson’s counsel “whether or not there actually can be a malicious prosecution case or claim based upon a Fourth Amendment seizure.” Counsel responded that Thompson’s claim rests on two unreasonable seizures—his two-day imprisonment and the police officer’s signature on a criminal complaint while Thompson remained in custody. By contrast, Justice Brett Kavanaugh pressed the defendants’ counsel to justify this “upside down rule” of requiring those falsely accused to “dig into the prosecutor’s mindset.”

The court should issue a decision before June 2022.

Stephen A Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the US Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Erica C Pulford also practices in the commercial litigation group in the firm’s Philadelphia office. Prior to joining the firm, she clerked for Judge Jerrold N. Poslusny Jr. on the US Bankruptcy Court for the District of New Jersey. She received her JD from Rutgers Law School and her BA from Colby College.

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