Section 1983 Malicious Prosecution: Some Recent Decisions (II)
In Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2010), the Seventh Circuit dealt with the plaintiff’s § 1983 Fourth and Fourteenth Amendment malicious prosecution claims against a law enforcement officer arising out of the plaintiff’s being charged with possession of a controlled substance. Ruling against the plaintiff, the court, quoting Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010), declared that individuals do not have a “federal right not to be summoned into court and prosecuted without probable cause, under either the Fourth or the Fourteenth Amendment’s Procedural Due Process Clause.” The Seventh Circuit, relying on its decision in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), added that the plaintiff also did not state § 1983 malicious prosecution causes of action because Illinois law recognized tort claims for malicious prosecution.
See also, with regard to the relevance of state tort claims for malicious prosecution, Parish v. City of Chicago, 594 F.3d 551, 552 (7th Cir. 2009), where the Seventh Circuit, again relying on Newsome , observed that “Seventh Circuit precedent does not permit an action for malicious prosecution under § 1983 if a state remedy exists. … And Illinois law provides a state remedy for malicious prosecution.” The court in Ray then went on to declare that it would not revisit, much less overrule, Newsome despite footnote 2 in Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007), that the Supreme Court “has never explored the contours of a Fourth Amendment malicious prosecution suit under § 1983 … and we do not do so here.”
Supreme Court of Utah
The Utah Supreme Court in Peak Alarm Company, Inc., v Salt Lake City Corporation, 2010 UT 22 (S. Ct. Utah 2010), addressed the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim against several law enforcement officials arising out of his prosecution for violating a state statute criminalizing the making of a false alarm, a charge resulting in a directed verdict in his favor. Ruling against the plaintiff, the Supreme Court of Utah first observed that the plaintiff’s brief detention occurred before the initiation of any legal process, namely, the issuance of a citation. It was not enough that one of the defendants retained the plaintiff’s driver’s license after the citation was issued. The court next discussed the issue of continuing seizure as it had been dealt with in the federal courts, and went on to conclude that even if it recognized the doctrine, the facts of this case did not show such a seizure: plaintiff was detained for forty minutes but not arrested, he did not have to post bail or communicate with pretrial services, and he had no travel restrictions imposed. Thus, there was neither a continuing seizure nor a seizure pursuant to legal process that would support the plaintiff’s Fourth Amendment malicious prosecution claim.
As you can see from these two posts, only the Seventh Circuit appears skeptical about the existence of section 1983 malicious prosecution claims.