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| Brian Frazelle |
The Supreme Court's April 4 decision in Thompson v. Clark[1] is different. Eliminating a barrier that stymied certain police misconduct suits, the court resolved unsettled issues against the police, reversed the consensus of the federal circuits, and went further than strictly necessary to sustain its ruling.
Especially coming from a court so unreceptive to lawsuits against the police, the Thompson decision should give criminal justice advocates cause for cheer, even though the decision's scope is admittedly narrow.
Thompson addressed damages suits against police officers under Title 42 of the U.S. Code, Section 1983, for malicious prosecution in violation of the U.S. Constitution's Fourth Amendment.
Sometimes called "unreasonable seizure pursuant to legal process," this is a claim that an officer instigated criminal proceedings that led a victim to be detained without probable cause. The plaintiff in Thompson, for example, alleges that when he refused entry to police officers who showed up at his door one night without a warrant, they not only barged inside anyway, but later filed a criminal complaint falsely claiming he had resisted arrest.
Before Thompson, almost every circuit that recognized this type of claim imposed a near-fatal restriction: To succeed, plaintiffs needed to show that their criminal prosecutions ended in a manner that provided some affirmative indication of their innocence, such as an acquittal.
For obvious reasons, this hurdle was often insurmountable. Most criminal cases don't proceed to a jury, and when officials drop charges earlier in the process, there is rarely any indication on the record as to why. The prosecutors in Thompson's case, for instance, swiftly dropped the charges without explanation, so he could cite nothing in those proceedings affirmatively indicating his innocence.
This innocence rule crept into the law in a haphazard way. As described in an amicus brief that my organization, the Constitutional Accountability Center, filed in support of Thompson,[2] the rule traces back to a period when courts were not always careful about identifying specific constitutional provisions as the basis of claims under Section 1983.
Many courts simply conflated malicious prosecution under Section 1983 with the common law tort of that name, one element of which is favorable termination of the underlying prosecution.
These courts then interpreted favorable termination narrowly, requiring indications of innocence rather than just the lack of a conviction. In doing so, the courts generally cited nothing more than a single unsupported comment in the Second Restatement of Torts.
A detailed 2020 opinion in Laskar v. Hurd, written by conservative U.S. Circuit Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit, is the one appellate decision rejecting this restrictive rule.[3]
Based on a comprehensive survey of state tort law at the time Section 1983 was enacted, the opinion concluded that the overwhelming majority of American courts rejected any indications-of-innocence requirement for malicious prosecution. Instead, they simply demanded that the prosecution ended without a conviction.
Because this was the dominant rule for malicious prosecution under common law, Judge Pryor wrote, the same rule should apply to the analogous constitutional claim under Section 1983.
Adopting essentially the same reasoning, the Supreme Court agreed in Thompson, wiping away the contrary precedent of seven circuits.
Bringing this issue to the Supreme Court was a calculated risk, because the court had not definitively held that Section 1983 even permits a claim for malicious prosecution under the Fourth Amendment. But somewhat surprisingly, Justice Brett Kavanaugh's opinion for a six-justice majority expressed no hesitation in holding that such claims are available.
The court could have punted by merely assuming this point for purposes of answering the question presented — whether success requires affirmative indications of innocence. As backward as that might seem, the court did something similar in 2019 in McDonough v. Smith, resolving an accrual question about a type of Section 1983 claim that the court assumed, without deciding, was available.[4]
Instead of taking that route in Thompson, the court squarely recognized the viability of malicious prosecution claims under the Fourth Amendment. It then swept away the innocence roadblock that most circuits had imposed on those claims.
These are significant developments. Holding police officers accountable for false accusations that trigger criminal prosecutions is important, not least because fabricating such claims — of assault, resisting arrest and the like — can be a tool used by unscrupulous officers to cover up their wrongful actions. The innocence rule barred many suits seeking accountability for this tactic.
As the court pointed out, that result perversely gave the weakest criminal charges the most protection from later scrutiny, because charges dismissed early on are least likely to have any discernable explanation on the record for that dismissal. And the rule could be manipulated, enabling prosecutors to sweep police misconduct under the rug by dropping charges without explanation.
Eliminating these barriers to accountability is a positive development. Still, it's difficult to gauge how consequential the decision will be. Malicious prosecution suits still face numerous challenges.
For example, even with the innocence rule out of the way, malicious prosecution plaintiffs need to make a number of showings, starting with a lack of probable cause for the charges brought against them.
They also may need to demonstrate that an officer's false accusations actually caused the decision to file charges — potentially a complicated showing in light of the independent participation of prosecutors.
Then there is the question of what it means to be seized in this context. When a person is released on bail or recognizance after being charged, has that person been seized, as some circuits have held, due to conditions of release that restrict their liberty?
Also unclear is whether a Section 1983 malicious prosecution claim, like the common law tort, requires showing that the defendant acted with malice. Lower courts have continued to impose that requirement even after recognizing that the Section 1983 version of malicious prosecution is rooted in the Fourth Amendment — under which an officer's subjective intent is usually irrelevant. Thompson expressly left the question open.
Lurking behind everything is the judge-made limit on all Section 1983 claims — qualified immunity — which often denies a remedy to victims of constitutional violations simply because they cannot identify precedent involving precisely the same factual scenario. Courts are especially reluctant to find the qualified immunity hurdle overcome in cases involving fast-moving encounters between individuals and law enforcement.
Thompson's limited scope may be why a robust majority of the court was willing to side against the police. Justice Kavanaugh described the dispute as narrow, and, citing some of the obstacles to recovery discussed above, wrote that the innocence rule "is not necessary to protect officers from unwarranted civil suits."
Deciding how much protection officers should have from lawsuits is not, of course, part of the court's job in interpreting Section 1983, but that hasn't stopped it from playing this role for decades. Usually this leads to a winnowing of constitutional guarantees, but here the justices seem to have perceived that the innocence rule was not needed to maintain the level of immunity for officers that they find appropriate.
Another aspect of Thompson also bears mentioning. The decision reinforces an approach to Section 1983 that the court began applying in the 1990s: When defining the elements of a constitutional claim, the court borrows the elements of the most analogous common law tort.
That approach makes little sense when a constitutional claim doesn't closely resemble any state tort, and neither the text nor the history of the statute sanctions it.
That said, three points about Thompson are notable here.
First, the court made unmistakably clear — to a degree it hasn't previously — that the relevant point of reference is not contemporary tort law but rather the law in place when the statute was enacted in 1871.
Second, the justices demonstrated that if courts are going to apply common law rules by analogy to Section 1983, they need to make sure they get the content of those rules right.
Third, the court reiterated more than once, quoting its 2017 decision in Manuel v. City of Joliet, that tort rules should be borrowed only "so long as doing so is consistent with 'the values and purposes of the constitutional right at issue.'"
While the court has not always heeded that admonition in the past,[5] it made sure in Thompson to explain why the rule it borrowed facilitates accountability for Fourth Amendment violations, as the statute requires.
If courts follow that approach going forward, Thompson could have beneficial ramifications that extend well beyond the sphere of malicious prosecution.
Brian R. Frazelle is a senior appellate counsel at the Constitutional Accountability Center.
Disclosure: Frazelle co-authored an amicus brief on behalf of the Constitutional Accountability Center in support of Thompson in Thompson v. Clark.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
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[1] Thompson v. Clark
, No. 20-659, slip op. (U.S. Apr. 4, 2022), https://www.supremecourt.gov/opinions/21pdf/20-659_3ea4.pdf.[2] Brief of Constitutional Accountability Center as Amicus Curiae in Support of Petitioner, Thompson v. Clark, No. 20-659 (U.S. June 11, 2021), https://www.theusconstitution.org/wp-content/uploads/2021/05/Thompson-CAC-Brief-FINAL.pdf.
[3] Laskar v. Hurd
, 972 F.3d 1278 (11th Cir. 2020).[4] McDonough v. Smith
, No. 18-485, slip op. (U.S. June 20, 2019), https://www.supremecourt.gov/opinions/18pdf/18-485_g2bh.pdf.[5] Brian Frazelle, The Supreme Court Just Made It Easier for Police to Arrest You for Filming Them, Slate, May 31, 2019, https://slate.com/news-and-politics/2019/05/supreme-court-nieves-police-abuse-case.html.