Nahmod Law

I suggest that malicious prosecution elements and terminology should have little or no place in the analysis of the section 1983 prima facie case. Instead, the primary focus should be on the relevant constitutional violation alleged by a plaintiff.

[Full disclosure: I recently but unsuccessfully made this kind of argument for the defense in Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008), cert denied, 129 S. Ct. 1526 (2009). But I argued long ago–in a 1970’s Indiana Law Journal article and in the second edition of my section 1983 treatise, published in the mid 80’s–that such tort concepts do not belong in the prima facie case analysis.]

The Prima Facie Case, Federal Law and State Law

Over the years the Supreme Court has clarified much of the section 1983 jurisprudence related to the prima facie case. We know of the primacy of the constitutional violation inquiry, the role of causation, the compensatory and punitive damages rules and who is a suable person under section 1983. We also know that by virtue of 42 U.S.C. section 1988 and 28 U.S.C. section 1738, section 1983 borrows extensively from state law with regard to statutes of limitations, wrongful death, survival and preclusion. However, there remains a particularly muddled area of section 1983 jurisprudence that has long cried out for rethinking: section 1983 malicious prosecution claims. Remarkably, such claims in the circuits are governed extensively by tort law, not primarily constitutional law, even though tort law should not determine the scope of section 1983 claims. Section 1983 is, after all, a statute that creates a Fourteenth Amendment action for damages, and constitutional law, not tort law, should be primary. At best, tort law should be used only to fill in statutory gaps. Read the rest of this entry »