The recent decision by the United States Supreme Court in Thompson v. Clark, 596 U.S. ____ (2022) has caused considerable concern among police officers and prosecutors. These law enforcement professionals who daily arrest and charge criminal defendants on the basis of probable cause may worry that they are now more vulnerable to malicious prosecution claims when charges are dismissed rather than pursued to trial. However, for those operating within the Ninth Circuit, the decision brought no significant change.
On January 15, 2014, Larry Thompson lived in an apartment in Brooklyn, New York with his now-wife, their one-week-old daughter, and his sister-in-law. The sister-in-law apparently suffered from a mental illness. At around 10:00 p.m., EMTs responded to a 911 call from the sister-in-law alleging that Thompson was sexually abusing his daughter. When the EMTs arrived, Thompson told them no one had called 911. The EMTs left and returned with four uniformed NYPD officers who told Thompson only that they needed to enter the apartment. Thompson told the police officers they could not enter his home without a warrant and stood to block the doorway. A short scuffle ensued, during which Thompson physically resisted the officers’ attempt to enter and they pushed Thomson to the ground and handcuffed him.
After examining the baby and finding red marks, the EMTs took the baby to the hospital for examination. The medical professionals determined the baby merely had diaper rash and found no signs of physical abuse. Meanwhile, the police arrested Thompson on charges of obstruction and resisting arrest. Thompson received medical care for injuries he received during the scuffle and remained in custody for two days. After his arraignment, he was released on his own recognizance.
In April 2014, the prosecution moved to dismiss the charges against Thompson “in the interest of justice.” The trial court granted the motion and dismissed the case. But no one present that day—including Thompson’s Legal Aid attorney—could recall any discussion of specifically why the prosecution moved, and the court granted, the motion to dismiss. Nor was there anything on the hearing transcript that day that provided any clarification.
Thompson subsequently sued the four NYPD officers involved in entering his home and arresting him, alleging violation of his civil rights pursuant to 42 U.S.C. § 1983. Thompson’s claims against the officers included unlawful entry, false arrest, and malicious prosecution.
After a jury trial, the federal district court granted the officers’ request for judgment as a matter of law on Thompson’s claim for malicious prosecution. After issuing judgment, the district court called upon the Second Circuit Court of Appeals to reverse its precedent that required the district court to dismiss Thompson’s malicious prosecution claim. Because under Second Circuit precedent, Thompson had to show not merely that his criminal prosecution ended without a conviction, but also with some affirmative indication of his innocence. But the Second Circuit chose to adhere to its precedent and affirmed the dismissal of Thompson’s malicious prosecution claim.
The Supreme Court accepted review of the case to resolve a split in the circuits concerning how the so-called “favorable termination” requirement should be interpreted.
The Decision and Its Impact
The Supreme Court first held that its precedent allowed Thompson to bring a Section 1983 malicious prosecution claim under the Fourth Amendment to the extent that the officers’ actions caused Thompson to be seized (i.e., arrested and charged with a crime) without probable cause.
Next, the Court held that a plaintiff in a Section 1983 malicious prosecution lawsuit is not required to show that his criminal prosecution ended with an affirmative indication of his innocence. Rather, a plaintiff only needs to show “that his prosecution ended without a conviction.”
At first blush, this decision appears to expand police and prosecutor exposure to malicious prosecution lawsuits. However, the essential element of a malicious prosecution claim—that the criminal prosecution was initiated without probable cause—remains unchanged. The Court expressly reminded lower courts that “officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity.” The Court also declined to rule on whether a plaintiff must show that officers or prosecutors acted with actual malice or other ill intent, leaving this open as a possible defense. Thus, there remain difficult hurdles for a malicious prosecution plaintiff to overcome. These significantly limit legal exposure for officers and prosecutors acting in good faith.
Despite the significance of the Thompson decision, most federal appellate courts—including the Ninth Circuit—had already adopted this more lenient “favorable termination” rule. So, there is no need for alarm.
Indeed, for most of our clients, this decision does not make any significant change. The Court essentially endorsed the standard that the Ninth Circuit has long applied to malicious prosecution lawsuits. (See, e.g., Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987) [holding a malicious prosecution claim could be stated where criminal charges were dismissed for lack of evidence]; and Roberts v. City of Fairbanks, 947 F.3d 1191 (9th Cir. 2020) [holding the “favorable termination” rule does not necessarily require the plaintiff to show that his criminal prosecution ended with an affirmative indication of his innocence].)
The takeaway is that officers and prosecutors should continue to fairly and appropriately enforce the laws. If probable causes exists, then arrest and prosecution will be defensible in a later Section 1983 malicious prosecution lawsuit.