CASE PREVIEW

Favorable termination and indications of innocence in Section 1983 malicious prosecution claims

Civil claims seeking damages for constitutional violations arising in the criminal-justice process require the plaintiff to show “favorable termination,” meaning the criminal proceedings were terminated in favor of the accused (the plaintiff in the subsequent civil action). Thompson v. Clark, to be argued Tuesday, considers whether a 42 U.S.C. § 1983 claim for malicious prosecution under the Fourth Amendment requires a resolution that “affirmatively indicates innocence,” as the lower court held, or that it “formally ended in a manner not inconsistent with” innocence.

Background and proceedings below

In January 2014, Larry Thompson lived in Brooklyn with his wife, Talleta Watson, their newborn daughter, and Thompson’s sister-in-law, Camille Watson, who has cognitive delays.

Unbeknownst to Thompson, Camille called 911 late one evening, reporting “red rashes” on the baby’s buttocks and describing them as signs of abuse. EMTs arrived at the apartment, spoke with Thompson, then left without examining the baby. Police officers returned to the apartment with the EMTs; when Thompson refused to allow them into the apartment, they pushed through the door, tackling and pinning him to the ground. EMTs examined the baby and concluded the red marks were diaper rash, but took her to the hospital, where medical personnel confirmed that there were no signs of abuse.

Pagiel Clark was one of the officers who responded to the call and entered Thompson’s apartment. Clark signed a criminal complaint against Thompson for resisting arrest and obstructing a governmental investigation. The report stated that Thompson had violently resisted: slapped an officer, flailed his arms, and physically struggled against the officers. Thompson was detained for two days before being released on his own recognizance at an arraignment. The prosecution offered an “adjournment in contemplation of dismissal,” which would have led to records of the prosecution being sealed without punishment; Thompson refused. Thompson’s defense attorney orally moved to dismiss the charges for facial insufficiency; the court ordered submission of a written motion. The prosecution then notified defense counsel it would dismiss the charges. One week later, the prosecution dismissed the case on its motion “in the interest of justice” and the court dismissed the matter.

Thompson sued for damages under Section 1983, which allows individuals to sue state actors for violating their constitutional rights. Of the several claims in the lawsuit, the one at issue is against Clark for an unreasonable seizure pursuant to legal process (analogous to the common law tort of malicious prosecution) under the Fourth Amendment. The district court entered judgment as a matter of law in favor of Clark, concluding that Thompson failed to show the criminal charged were “dismissed in a manner affirmatively indicative of his innocence.” The U.S. Court of Appeals for the 2nd Circuit affirmed, because the record in the criminal proceeding provided no reasons for the dismissal and Thompson failed to show his innocence of the charges.

Thompson’s arguments

Thompson begins with the purposes of the favorable-termination requirement — avoiding parallel criminal and civil proceedings and preventing individuals from using civil litigation to collaterally attack final criminal judgments. When criminal charges have been dismissed prior to trial, the subsequent civil action does not implicate either concern, as there is no parallel criminal proceeding and no judgment to attack. Under the Supreme Court’s precedents, a plaintiff can show favorable termination when a conviction later was “invalidated” or when he has been acquitted following trial. Neither “affirmatively indicates” a person’s actual innocence. If acquittal after trial or a later-invalidated conviction after trial establish favorable termination, Thompson argues, so must the successful dismissal of charges before any trial or conviction.

Thompson bolsters his argument through the state of the law for the analogous tort of malicious prosecution as of 1871, when Congress enacted Section 1983. Relying on the U.S. Court of Appeals for the 11th Circuit in Laskar v. Hurd, Thompson argues that one state court at the time required affirmative indications of innocence and a clear majority did not limit favorable termination. American courts followed English precedent that found favorable termination when the criminal proceeding no longer was pending, absent a judgment or admission of guilt; that included cases in which criminal charges were dismissed or abandoned.

Finally, Thompson identifies practical problems with the 2nd Circuit’s approach, labeling it incoherent, perverse, and difficult to administer. It makes no sense, he argues, to require a civil plaintiff to show that the criminal proceeding indicated his innocence, whereas the criminal case asks whether the prosecution established guilt beyond a reasonable doubt. This requires a criminal defendant to prove his innocence during the prosecution, contrary to the presumption of innocence. The problem is exacerbated in this case, where the state’s dismissal of the prosecution stripped Thompson of any opportunity to present evidence of his innocence. It would force a defendant in Thompson’s position — he alleges he faced a meritless prosecution on unfounded charges based on fabricated evidence — to object to dismissal of the charges and to go to trial to preserve a future Section 1983 claim. An individual facing weaker criminal charges, those more likely to be dismissed, is less able to bring a Section 1983 claim than an individual facing charges strong enough to warrant a trial and possible conviction.

Arguments of the United States

The United States appears as amicus curiae in support of Thompson and urging reversal of the 2nd Circuit.

It argues that the common law tort most analogous to Thompson’s claim for an unreasonable seizure pursuant to legal process is malicious prosecution. Because the tort claim required favorable termination, so must the parallel Section 1983 claim. This preserves the common law analogy and fulfills the purposes of preserving finality, avoiding parallel litigation, and preventing civil litigation from becoming a collateral attack on a criminal conviction.

But termination of the criminal proceedings, the government argues, can be “favorable” without affirmative indications of innocence. That requirement has no basis in common law principles as of 1871. Despite variations across states, the general rule was that favorable termination meant that the prosecution being challenged had been disposed of and could not be renewed. Affirmative indications of innocence are not necessary to preserve finality or to preclude parallel proceedings. And the civil action does not function as a collateral attack on a conviction so long as the criminal proceeding ended in a manner “not inconsistent with innocence.” Nor are affirmative indications necessary to protect Fourth Amendment values. The Fourth Amendment question is whether criminal proceedings were initiated without probable cause, not how they ended; while the latter determination may inform the probable-cause question, the focus is on what the defendants knew at the earlier point in time.

Courts justify a favorable-termination requirement as a mechanism for filtering non-meritorious claims, by barring those lacking some demonstrated likelihood of success. While acknowledging reasonable concerns for frivolous claims, the United States argues those considerations do not justify an indications-of-innocence requirement, especially given its inconsistency with common law. Other requirements — such as the plaintiff’s obligation to prove the absence of probable cause and the defense of qualified immunity — enable courts to stop false claims at the outset.

Clark’s arguments

Clark’s brief focuses on precedent issues that allow the court to affirm in the simplest way, without having to decide the meaning of favorable termination.

Clark argues that Thompson did not go to trial on a claim of unreasonable seizure-through-legal-process, although he could have. Instead, Thompson pursued a Fourth Amendment malicious-prosecution claim, alleging a seizure prior to initiation of process based on Clark signing the criminal complaint. But the Supreme Court has never recognized such a claim, and Clark urges it to hold that no such claim exists. Clark identifies a mismatch between malicious prosecution, which focuses on whether a police officer influenced a prosecutor into pursuing a criminal case, and the Fourth Amendment, which focuses on whether a police officer caused a seizure by ordering pretrial detention. The seizure Thompson complains of is his initial arrest, which ended following his arraignment and release on his own recognizance.

To the extent Thompson pursues a “newly recast” Fourth Amendment claim based on a post-arraignment seizure, Clark argues, the elements of such a claim may not include the favorable-termination requirement the court has been asked to define. The court’s prior cases requiring favorable termination were due process cases, not Fourth Amendment cases. Lower courts are divided on whether the latter require favorable termination. Clark urges the court to “clear the decks” by confirming the absence of such a requirement or by dismissing this grant of certiorari as improvidently granted.

If Thompson’s Fourth Amendment claim exists as he argues it and if it requires favorable termination, Clark argues, the 2nd Circuit applied the correct standard and the court should affirm. The question of what favorable termination required was unsettled at common law. Some courts required an affirmative ruling in favor of the accused, such as an acquittal, or a showing that the criminal charges lacked merit. No rule was so well-settled in 1871 that the court can presume Congress intended to adopt it. With no settled rule as of 1871, the court can look at post-1871 sources; treatises, a growing number of state courts, and seven of eight federal circuits have found that malicious prosecution claims under Section 1983 require indications of innocence.

Finally, Clark identifies policy concerns supporting an indications-of-innocence requirement. Such a requirement filters claims that have not already demonstrated some likelihood of success. It frees prosecutors to dismiss criminal charges for many reasons having nothing to do with the merits of the case, without creating the anomaly that the prosecutor’s professional and discretionary choice to drop charges subjects the arresting officer to civil liability.