Section 1983 Malicious Prosecution: Some Recent Decisions (IV)
I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11 and 8-7-13 about section 1983 malicious prosecution cases in the circuits.
What follows are three relatively recent circuit decisions dealing with such claims, decisions that I ran across in preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT on Westlaw). Two of these decisions are from the Seventh Circuit; the third is from the Tenth Circuit.
Julian v. Hanna (7th Cir. 2013)
In Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), the Seventh Circuit, in an opinion by Judge Posner, addressed the plaintiff’s due process malicious prosecution claim arising out of the law enforcement officers’ allegedly coercing another suspect in a burglary-fire to accuse plaintiff in the course of fabricating charges against him, leading to plaintiff’s prosecution, conviction and sentence of 15 years. He was thereafter successful in obtaining post-conviction relief and all charges were dismissed after he had served about three years but more than nine years after he was arrested. The Seventh Circuit, relying on the concurring opinions of Justices Kennedy and Thomas in Albright as well as on Parratt, rejected the defendants’ argument that they could not be sued for malicious prosecution under due process because Indiana provided an adequate remedy. This purported Indiana remedy was inadequate here for several reasons: the absolute immunity of police officers under state law and the fact that Indiana damages remedies for false arrest or false imprisonment would be far less than for malicious prosecution since they would cover only the week or so he was detained before being formally charged. In contrast, the period for which malicious prosecution damages might be recovered began with his arrest and ended only over nine years later when charges were dismissed.
Serino v. Hensley (7th Cir. 2013)
Compare Serino v. Hensley, 2013 WL 5878463 (7th Cir. 2013), where the Seventh Circuit dealt with the plaintiff’s allegation of a § 1983 due process malicious prosecution claim arising out of his being charged with trespass and resisting law enforcement. In the course of its opinion affirming the district court’s dismissal of the complaint, the Seventh Circuit reaffirmed that its decision in Julian had made clear that Indiana state law does not provide an adequate remedy for malicious prosecution. However, it determined that the plaintiff still had to allege a constitutional right separate from false arrest under the Fourth Amendment and he did not do so here. Specifically, he did not allege that the chief of police made recommendations that were knowingly false, that he withheld exculpatory evidence from the prosecutor or that he took steps to further what he knew was a baseless prosecution. Nor did plaintiff allege actual malice. Finally, he did not allege that he had suffered a post-arraignment liberty deprivation. His complaint alleged only harm resulting from his arrest. For these reasons the complaint did not state a constitutional violation for § 1983 malicious prosecution purposes.
Myers v. Koopman (10th Cir. 2013)
Myers v. Koopman, 2013 WL 6698102 (10th Cir. 2013), involved a plaintiff’s § 1983 malicious prosecution claims arising out of the defendant detective’s allegedly obtaining an arrest warrant by fabricating facts to create the illusion of probable cause, resulting in plaintiff’s spending three days in custody. The Tenth Circuit affirmed the district court’s dismissal of plaintiff’s § 1983 malicious prosecution due process claim because an adequate Colorado remedy existed. This alleged conduct could not be anticipated and hence an adequate post-deprivation remedy satisfied due process requirements. However, it reversed the district court’s dismissal of his § 1983 Fourth Amendment malicious prosecution claim because he was indeed seized after the institution of legal process. This differentiated the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim from a Fourth Amendment false imprisonment claim. The Tenth Circuit relied for this point on its decision in Wilkins v. DeReyes.
1. All three of these cases speak about the availability of state post-deprivation remedies in connection with section 1983 (procedural?) due process malicious prosecution claims. The Seventh Circuit in particular emphasizes that such a remedy must be adequate and determines that the Indiana remedy for malicious prosecution is in fact inadequate.
2. As the Seventh Circuit points out, section 1983 malicious prosecution claims, whatever their constitutional basis, must be sharply distinguished from Fourth Amendment false arrest claims.
3. As the Tenth Circuit points out, section 1983 malicious prosecution claims based on due process must be sharply distinguished from section 1983 Fourth Amendment malicious prosecution claims.
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