Nahmod Law

Section 1983 Malicious Prosecution: Some Recent Decisions (III)

I blogged on Sept. 11, 2009, about so-called section 1983malicious prosecution” claims. I then blogged on 9-8-11 and 9-26-11 about section 1983 malicious prosecution cases in the circuits.

What follows are two relatively recent circuit decisions dealing with such claims, decisions that I ran across in preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT  on Westlaw).

The Second Circuit

The Second Circuit, reversing the district court which had dismissed the plaintiff’s § 1983 malicious prosecution claim, stated that the elements of a § 1983 malicious prosecution claim are “derived” from state law and include (1) commencement of a criminal proceeding, (2), favorable termination, (3) lack of probable cause and (4) actual malice. It went on to declare: “Additionally …, to be actionable under section 1983 there must be a post-arraignment seizure, the claim being grounded ultimately on the Fourth Amendment’s prohibition of unreasonable seizures.” Here there was such a seizure. Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013).

The Eighth Circuit

In Harrington v. City of Council Bluffs, 678 F.3d 676, 680-81 (8th Cir. 2012), the Eighth Circuit declared:

Assuming a Fourth Amendment right against malicious prosecution exists, such a right was not clearly established when the [plaintiffs] were prosecuted in 1977 and 1978. In 1978, the Supreme Court described in Albright the “‘embarrassing diversity of judicial opinion’ [on] the extent to which a claim of malicious prosecution is actionable under § 1983.”

Moreover, the Eighth Circuit pointed out that in 1976 it had said that whether malicious prosecution violates any constitutional rights was “undecided.”

(I represented the defendants in Harrington in the Eighth Circuit).


I have long argued, contrary to the Second Circuit’s approach, that section 1983 malicious prosecution claims should be based on the underlying constitutional violations alleged and not on state tort law elements.

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Written by snahmod

August 7, 2013 at 4:38 pm

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