Skip to Content

Malicious Prosecution: Dismissals as Good as Acquittals

In April, the United States Supreme Court issued a landmark opinion overruling decades of precent with respect to whether law enforcement officials can be held liable for maliciously prosecuting suspects, even if the prosecutions do not end in an acquittal. Thompson v. Clark, 142 S. Ct. 1332 (2022). Its decision will require law enforcement officials to exercise greater diligence in charging and prosecuting suspects, and potentially open the door to litigation that was previously barred as a matter of law.

The facts of Thompson v. Clark are these. In January 2014, Larry Thompson was living in an apartment in Brooklyn, New York with his fiancée and his newborn baby. One evening, Thompson’s future sister-in-law, who apparently suffered from a mental illness, called 911 to report that Thompson was sexually abusing his newborn child. When EMTs arrived, Thompson denied that anyone had called 911. The EMTs left, but when they returned shortly thereafter, four police officers accompanied them. Thompson told the officers that they could not enter without a warrant, but Thompson was handcuffed and arrested anyway. EMTs took the baby to the hospital where medical professionals examiner her and found no signs of abuse. Thompson was arrested and charged with obstructing governmental administration and resisting arrest, and remained in custody for two days.

Shortly before trial, Thompson’s charges were dismissed without any explanation by the prosecutor or the judge. Angry after having been accused of abusing his daughter and held in custody for two days, Thompson brought suit for damages under 42 U.S.C. § 1983 against the police officers who had arrested and charged him. Thompson alleged several constitutional violations, including a Fourth Amendment claim for “malicious prosecution” (an “unreasonable seizure pursuant to legal process.”) Thompson v. Clark, No. 20-659, 2022 WL 994329, at *3 (U.S. Apr. 4, 2022). 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.    

Throughout the United States, individuals seeking recovery based on a claim for malicious prosecution must generally show that a defendant (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, 794 S.E.2d 439, 444 (2016); Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000). While Thompson faced little difficultly pleading elements one (1) through three (3), element four (4) raised nuanced questions: could Thompson’s claim proceed because his criminal prosecution ended without a conviction, or must Thompson also demonstrate that his prosecution ended with some affirmative indication of his innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient to show that a crime was committed?

Element four (4) serves several important purposes: it avoids parallel litigation in civil and criminal proceedings over the issues of probable cause and guilt; it precludes inconsistent civil and criminal judgments where a claimant could succeed in the tort action after having been convicted in the criminal case; and it prevents civil suits from being improperly used as collateral attacks on criminal proceedings. The question of what constitutes a “favorable termination,” however, has presented a substantial obstacle to litigants seeking to file lawsuits for malicious prosecution.

For nearly half a century, federal circuit courts have held (almost uniformly) that individuals filing malicious prosecution lawsuits must offer evidence that the prior proceeding with some affirmative indication of his or her actual innocence in order to satisfy the requirement that the underlying criminal proceedings terminated “in favor of the plaintiff.” See, e.g., Jordan v. Town of Waldoboro, 943 F.3d 532 (1st Cir. 2019); Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018); Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009); Salley v. Myers, 971 F.3d 308 (4th Cir. 2020); Jones v. Clark Cty., Kentucky, 959 F.3d 748 (6th Cir. 2020); Cordova v. City of Albuquerque, 816 F.3d 645 (10th Cir. 2016). This proposition was “codified” in the 1976 Second Restatement of Torts. Restatement (Second) of Torts § 660, and Comment a (1976).

Consistent with this broad consensus, the District Court for the Eastern District of New York, and the Court of Appeals for the Second Circuit, entered judgment against Thompson on his claim for malicious prosecution because Thompson’s prosecution did not conclude with an affirmative indication of his actual innocence. Thompson, 142 S. Ct. at 1336.

On appeal, the Supreme Court reversed the holding of the Second Circuit, and, in so doing, issued a landmark opinion overturning decades of precedent from across the country requiring a plaintiff to offer evidence that his or her prosecution ended with some affirmative indication of his or her actual innocence to prevail on a claim for malicious prosecution. Looking at the tort of malicious prosecution from 1871, when 42 U.S.C. § 1983 was passed, the Supreme Court found the “favorable termination” element was satisfied historically so long as the prosecution ended without a conviction. Thompson, 142 S. Ct. at  1340. For that reason, a plaintiff in 1871 could maintain a malicious prosecution claim when, for example, the prosecutor abandoned the criminal case or the court dismissed the case without providing a reason. See, e.g., Fay v. O’Neill, 36 N.Y. 11, 13 (1867); Murray v. Lackey, 6 N.C. 368, 368–369 (1818); Driggs v. Burton, 44 Vt. 124, 143–144 (1871); Brown v. Randall, 36 Conn. 56, 61–63 (1869); Sayles v. Briggs, 45 Mass. 421, 425–426 (1842); Yocum v. Polly, 40 Ky. 358, 359 (1841); Burhans v. Sanford, 19 Wend. 417, 418 (N. Y. 1838); Cotton v. Wilson, Minor 203 (Ala. 1824).

The Supreme Court’s rationale for its holding is not based only on a historical analysis of the tort of malicious prosecution. Writing for the Court, Justice Kavanaugh explained that the question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. Thompson v. Clark, No. 20-659, 2022 WL 994329, at *6 (U.S. Apr. 4, 2022). In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would “paradoxically foreclose a § 1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial.” Id. This, Justice Kavanaugh wrote, “would make little sense.” Id.

The Supreme Court’s holding in Thompson is likely to have significant ramifications for law enforcement officers and agencies throughout the United States, who have to make decisions on a daily basis about whether to charge individuals whom they believe to be engaged in criminal conduct. Before Thompson, law enforcement officials’ decisions were largely protected by the rule that arrests would not give rise to liability so long as the ultimate disposition of the matter did not end with an affirmative indication of the suspect’s innocence.  Thompson creates more uncertainty for law enforcement officials, who will now be required to exercise even greater diligence in evaluating and bringing charges against citizens.  While this greater diligence will be a good thing for the public, on the other hand, the increased threat of potential civil liability for malicious prosecution may discourage law enforcement agencies and officials from repeating the behavior illustrated in Thompson and simply dropping charges against a suspect when it no longer makes sense to pursue those charges. Instead, if they face potential civil liability after dropping charges against a suspect, law enforcement officials may feel compelled to prosecute a matter to its ultimate conclusion irrespective of the outcome.

Now that dismissals are as good as acquittals, Thompson will open the door to litigants seeking to hold law enforcement accountable even if there is no indication of the litigant’s innocence. Officers will have to be confident in their charging decisions, and exercise a high degree of due diligence in ensuring that their charges are supported by probable cause.



May 5, 2022 Jeffrey Steven McConnell Warren
Posted in  News