Nahmod Law

Section 1983 Malicious Prosecution, Favorable Termination and Oral Argument in Thompson v. Clark

The recent oral argument in Thompson v. Clark, 141 S. Ct. 1682 (2021), granting certiorari in 794 Fed. Appx. 140 (2nd Cir. 2020), to deal with the meaning of favorable termination, shows that some of the Justices–perhaps a majority–are very concerned with the elements of section 1983 malicious prosecution claims.

The Section 1983 Background and the Manuel Decision

Recall the Supreme Court’s section 1983 Fourth Amendment malicious prosecution decision in Manuel v. City of Joliet, 137 S. Ct. 911 (2017), where, in an opinion by Justice Kagan, the Court held that there is a Fourth Amendment right to be free from seizure without probable cause that extends through the pretrial period, even though the seizure is “pursuant to legal process.” Specifically, a seizure can occur both before the onset of legal proceedings, i.e, the arrest, and after the onset of criminal proceedings, i.e., where a judge’s probable cause determination is based solely on a police officer’s false statements, as was allegedly the case in Manuel.

However, the Court remanded to the Seventh Circuit on the favorable termination question after describing the opposing positions on the issue, including the observation that the United States agreed with the plaintiff in Manuel, as did eight of the ten circuits that have favorable termination requirements.

These favorable termination–raised, briefed and argued in Manuel– have been a matter of importance to me for some time. In fact, I wrote an amicus curiae brief in support of the defendants in Manuel that deliberately did not take a position on the Fourth Amendment issue. Instead, the brief urged the Court to eliminate the confusion caused by the use of malicious prosecution terminology in section 1983 cases. The brief also maintained that the elimination of this terminology would be neutral in its effects on plaintiffs and defendants alike. Along those lines, my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2021-22 Edition)(West), has for decades called for the virtual elimination of most of the tort-like terminology used for such purposes and for a renewed focus on the constitutional bases for such claims.

Manuel provided the Court with its first opportunity in the twenty-three years since Albright v. Oliver, 510 U.S. 266 (1994), to consider the elements of such claims. Regrettably, it did not do so in Manuel. But I predicted that the Court would one day have to deal with these issues, including the favorable termination requirement and other elements of section 1983 malicious prosecution claims.

The Favorable Termination Requirement At Issue inThompson v. Clark

That day may have arrived in Thompson v. Clark. Here is the Question Presented in Thompson:

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.

Oral Argument in Thompson and the “Upstream” and “Downstream” Questions

Although the narrow question before the Court is whether favorable termination requires some indication of innocence, the oral argument fairly quickly moved away from that inquiry, only to return to it later. While Justice Thomas wondered about the Fourth Amendment seizure issue, as others did as well, Justice Gorsuch began asking questions about the elements of a section 1983 malicious prosecution claim, including the relevance of malice. Justice Kavanaugh also wondered whether the Court should use this case to clear up section 1983 malicious prosecution claims in general. Justice Gorsuch further asked: why not simply use New York’s malicious prosecution law? Other justices chimed in with similar questions regarding section 1983 malicious prosecution, although there were also questions about favorable termination and indication of innocence.

Chief Justice Roberts then described the case before the Court as involving both “upstream” and “downstream” issues. The upstream issues implicated the existence and elements of section 1983 malicious prosecution claims while the downstream issues implicated the meaning of favorable termination. He observed that the Court had not yet resolved important upstream issues of the sort raised by Justice Gorsuch and others.

On the other hand, Justices Kagan and Sotomayor pointed out that it was the downstream question of favorable termination which the Court had granted certiorari to resolve. Justice Kagan also suggested that the case here involved not malicious prosecution as such, but rather the use of malicious prosecution by way of analogy. Indeed, the Court, per Justice Scalia’s opinion, had made use of this analogy in Heck v. Humphrey, 512 U.S. 477 1994).


On the narrow issue of favorable termination, I argued in my Treatise and on this blog that there should be no indication of innocence requirement for favorable termination. See The Court in Thompson could avoid the upstream issues and just decide this narrow issue.

On the other hand, the Court might reach out and address some of the more difficult upstream issues that several of the Justice mentioned. If the Court does so, it should tread carefully and avoid overly broad statements of section 1983 law that are not presented in Thompson itself.

My prediction is that the Court will not reach these upstream issues but instead rule on the downstream issue of favorable termination. Still, I expect a few of the justices–especially Justice Gorsuch–to address the upstream issues at some length.

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Written by snahmod

November 29, 2021 at 9:03 am

Posted in Uncategorized

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