Section 1983 Malicious Prosecution (VII): Recent Decisions from the Sixth, Seventh and Tenth Circuits
I blogged on March 24, 2016, about the Supreme Court’s recent grant of certiorari in Manuel v. City of Joliet, 136 S. Ct. 890 (2016), arising in the Seventh Circuit, to address whether and when the Fourth Amendment can serve as the basis of a section 1983 malicious prosecution claim.
Before that, and importantly, I blogged on Sept. 11, 2009, about the basic elements of section 1983 malicious prosecution claims and set out my view of such claims.
What follows are recent section 1983 malicious prosecution decisions from the Sixth, Seventh and Tenth Circuits that I came across in preparing the 2016 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
The Recent Sixth, Seventh and Tenth Circuit Decisions
As you peruse these case summaries, note that the Sixth and Tenth Circuit explicitly allow for section 1983 malicious prosecution claims based on the Fourth Amendment, while the Seventh Circuit adheres to the position it took in Newsome v. McCabe, 256 F. 3d 747 (7th Cir. 2001). Namely, according to the Seventh Circuit, there is no Fourth Amendment right not to be summoned into court and prosecuted without probable cause and, in any event, adequate state post-deprivation remedies must be used where section 1983 malicious prosecution claims are brought.
The Sixth Circuit stated:
Freedom from malicious prosecution is a clearly established Fourth Amendment right. To succeed on a malicious prosecution claim under Bivens or § 1983, a plaintiff must prove the following: (1) the defendant made, influenced, or participated in a decision to prosecute the plaintiff; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial arrest; and (4) the criminal proceeding was resolved in the plaintiff’s favor.
Webb v. United States, 789 F.3d 647 (6th Cir. 2015).
In Howlett v. Hack, 794 F.3d 721 (7th Cir. 2015), the plaintiff, who had been arrested, prosecuted and acquitted of charges arising out of an alleged house break-in, sued the arresting police officer and a city under section 1983 alleging malicious prosecution under the Fourth Amendment. Citing Newsome, the Seventh Circuit declared that such a claim, even if it could be made (the court commented that there is no federal right not to be summoned into court and prosecuted without probable cause) is not actionable if there is an adequate state remedy. However, even though Indiana did not provide an adequate remedy because governmental entities and their employees are immunized from state malicious prosecution suits, the plaintiff still lost: not only was there probable cause here, there was also no post-arraignment deprivation of liberty.
In Sanchez v. Hartley, 810 F.3d 750 (10th Cir. 2016), the Tenth Circuit, citing its precedents, reaffirmed that section 1983 allows for recovery for malicious prosecution under the Fourth Amendment. Specifically, it determined that the plaintiff stated a section 1983 malicious prosecution Fourth Amendment claim when he alleged that detectives and an investigator sought legal process against him based on his supposed confession even though they either knew of, or were reckless with regard to, its falsity. “If [plaintiff’s] allegation is credited, it would involve a constitutional violation, for we have held that the Fourth Amendment prohibits officers from knowingly or recklessly relying on false information to institute legal process when that process results in an unreasonable seizure.” Moreover, the defendants were not entitled to qualified immunity because it was clearly established by 2009 that the alleged conduct violated the Fourth Amendment, even if the contours of the section 1983 claim for malicious prosecution were not. What was crucial was the constitutional standard, here the Fourth Amendment.
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