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.

Section 1983 and the Improper Use of Malicious Prosecution Elements

But much more than this gap-filling occurs in connection with section 1983 malicious prosecution claims in the circuits.  To the contrary, the malicious prosecution elements of favorable termination, absence of probable cause and malice are grafted onto what should be straightforward section 1983 claims of constitutional violations. I submit that this is simply incorrect. Malicious prosecution doctrines only get in the way of what is really at stake in these cases as a prima facie matter: did the defendant violate the plaintiff’s constitutional rights and thereby cause harm? Rethinking section 1983 malicious prosecution means the elimination of malicious prosecution elements and terminology from the analysis.

Supreme Court Decisions

The Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994)(plurality opinion), was a small step in the right direction because it at least made clear that section 1983 malicious prosecution claims cannot be based on substantive due process. But it did not go nearly far enough in removing malicious prosecution elements from the mix. Adding to the confusion, the Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), has been incorrectly read as involving a section 1983 malicious prosecution claim. Rather, the Court in Heck used malicious prosecution by analogy only to determine the time of accrual of a plaintiff’s section 1983 claim when directed against an existing conviction. Interestingly, the Court’s recent decision in Wallace v. Kato, 549 U.S. 384 (2007), which dealt with accrual issues and the scope of Heck, stated in passing in footnote 2 that the Court has never “explored the contours of a Fourth Amendment malicious- prosecution claim” under section 1983.

Impact of My Position on Plaintiffs and Defendants

I believe that my position is neutral as between plaintiffs and defendants: depending on the facts of a particular case, eliminating malicious prosecution elements and terminology from the mix will sometimes advantage a plaintiff, and sometimes a defendant. Also, my position does not time-bar a section 1983 claim alleging wrongful conviction and imprisonment in violation, say, of the Fourth Amendment or due process. Such a claim would not ordinarily accrue in any event under Heck until after the conviction is overturned.

What would be gained overall is clarity of constitutional and statutory analysis.