What Is “Favorable Termination” Where There Is No Conviction?

The Rule of Heck v. Humphrey: An Existing Conviction

Suppose a section 1983 plaintiff has been convicted of a crime and wants to sue law enforcement officers for damages arising out of his arrest, prosecution, imprisonment or conviction. An initial hurdle is the seminal decision of Heck v. Humphrey, 512 U.S. 477 (1994), which governs those situations in which the section 1983 plaintiff has a existing conviction whose validity might be implicated by a successful damages action as, for example, where the plaintiff alleges that he was prosecuted and convicted because the defendants fabricated evidence. In such cases, the section 1983 claim does not accrue until the underlying conviction is reversed, expunged or otherwise declared invalid by a state tribunal or called into question by a federal court’s issuance of a writ of habeas corpus. According to the Supreme Court, this accrual rule stems from the “intersection” of section 1983 and habeas corpus and is analogous to the common law tort of malicious prosecution where a favorable termination is a required element of a plaintiff’s claim (together with absence of probable cause and malice).

In contrast, where the section 1983 damages action, if successful, would not implicate the validity of the underlying conviction–as, for example, where the plaintiff, convicted of arson, alleges that excessive force was used against him when he was arrested–the section 1983 excessive force claim accrues at the time of the challenged conduct, here, the time of arrest.

(See generally on Heck: https://nahmodlaw.com/2013/06/17/a-section-1983-primer-10-statutes-of-limitations-and-accrual-after-heck-v-humphrey/)

What If There Is No Conviction? The Certiorari Petition in Thompson v. Clark

So far so good. Suppose now that a section 1983 plaintiff who was never convicted alleges that he was arrested and/or prosecuted in violation of his constitutional rights. More specifically, he alleges that he was unlawfully seized pursuant to legal process in violation of the Fourth Amendment and held in jail pending trial pursuant to a judge’s decision. Thereafter, all charges are dismissed and he is released. (Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017) about which I posted here: https://nahmodlaw.com/2017/05/15/manuel-v-city-of-joliet-the-court-rules-section-1983-malicious-prosecution-claims-can-be-based-on-the-fourth-amendment-but-otherwise-punts/).

When does such a plaintiff’s cause of action accrue? More specifically, if favorable termination is required by analogy to malicious prosecution, must that favorable termination affirmatively show that the section 1983 plaintiff was innocent or is it enough for the plaintiff to show that the favorable termination was not inconsistent with his innocence?

A petition for certiorari in Thompson v. Clark, No. 20-659 (filed 11-6-20), out of the Second Circuit, raises that issue. In this case, “the prosecution dismissed the charges against petitioner without any plea or compromise. Petitioner’s case was called at a hearing, and the prosecution simply stated: ‘People are dismissing the case in the interest of justice.'” Under Second Circuit precedent, this was insufficient to show favorable termination because the dismissal did not demonstrate the plaintiff’s innocence.

Hence the Question Presented in the petition: “Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2nd Circuit decided in Lanning v. City of Glens Falls.”

Among other things, the petitioner maintains that the First, Third, Fourth, Sixth, Ninth and Tenth Circuits incorrectly take the same position as the Second Circuit where there is no conviction, thus giving rise to a circuit conflict between the Eleventh Circuit and these others that merits a grant of certiorari.

Comments

Regardless of whether the Court grants certiorari in Thompson, the preferable favorable termination rule is one that does not require an affirmative indication of innocence. Among other considerations, a contrary rule would encourage prosecutors to offer potential section 1983 plaintiffs a dismissal or its equivalent–an offer many litigants and their attorneys would find difficult to resist in the face of a threatened criminal trial–and thereby undermine any future section 1983 claims challenging the unreasonable seizure pursuant to legal process.
Requiring an affirmative indication of innocence would place those never convicted in a worse position for section 1983 purposes than those who were in fact convicted. Heck does not appear to require an affirmative indication of innocence as a condition precedent to going forward with a section 1983 damages claim; it requires only that the conviction be invalidated where the damages action, if successful, would call the conviction into question.
As nicely pointed out in one of the Amicus briefs, requiring an affirmative indication of innocence is inconsistent with the presumption of innocence.
Note that another important accrual decision based on an analogy to malicious prosecution, McDonough v. Smith, 139 S. Ct. 2149 (2019), involving a due process fabrication of evidence claim, dealt with an acquittal as a favorable termination. (See generally https://nahmodlaw.com/2019/06/21/mcdonough-v-smith-the-supreme-court-answers-an-important-section-1983-fabrication-of-evidence-accrual-question/). So far as I know, no one has argued that an actual acquittal is not a favorable termination.
Whatever “favorable termination” turns out to mean, it will be a matter of federal law since we are dealing with the accrual of a section 1983 cause of action. It will therefore apply nationally.

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