Nahmod Law

Suppose a § 1983 plaintiff asserts a Fourth Amendment malicious prosecution claim for damages against law enforcement officers. We know from Manuel v. City of Joliet, 580 U.S. 357 (2017), and Thompson v. Clark, 142 S. Ct. 1332 (2022), that such a claim may be viable where the plaintiff alleges a seizure, the absence of probable cause, malice (presumed by the absence of probable cause) and favorable termination. See generally on § 1983 Fourth Amendment malicious prosecution, §§ 3:63-3:67 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 Ed.)(West/Westlaw))

The Issue in Chiaverini

Suppose now that our §1983 plaintiff was arrested and prosecuted on three criminal charges and that there was a favorable termination of those three charges by way of dismissal. However, it turns out that there was probable cause to arrest and prosecute on two of those charges but not the third. Can the § 1983 Fourth Amendment claim go forward on the third charge? Or is that claim barred because of the presence of probable cause for the other two charges?

In Chiaverini v. City of Napoleon, No. 21-3996 (6th Cir. Jan. 11, 2023), cert granted, S. Ct. Docket No. 23-50 (Dec. 13, 2023), the Supreme Court will address this issue in connection with the following Question Presented:

   ”To make out a Fourth Amendment malicious prosecution claim under 42 U.S.C. § 1983, a plaintiff must show that legal process was instituted without probable cause. Thompson v. Clark, 142 S. Ct. 1332, 1338 (2022). Under the charge-specific rule, a malicious prosecution claim can proceed as to a baseless criminal charge, even if other charges brought alongside the baseless charge are supported by probable cause. Under the “any-crime” rule, probable cause for even one charge defeats a plaintiff’s malicious prosecution claims as to every other charge, including those lacking probable cause.

   The question presented is: Whether Fourth Amendment malicious prosecution claims are governed by the charge-specific rule, as the Second, Third, and Eleventh circuits hold, or by the “any- crime” rule, as the Sixth Circuit holds.”

In Chiaverini, the Sixth Circuit had ruled, based on its circuit precedent supporting the “any-crime” rule, that because probable cause existed to support the plaintiff’s detention and prosecution on two of the criminal charges, receiving stolen property and a license violation (both misdemeanors), the allegedly meritless charge for which probable cause did not exist, money laundering (a felony), did not change the nature of the seizure. For this reason, the Sixth Circuit concluded, the plaintiff’s Fourth Amendment malicious prosecution claim based on the money laundering charge could not go forward.

The Circuit Split

As noted, this issue has divided the circuits, which is likely the reason the Court granted certiorari. The Second Circuit previously held that the “charge-specific” rule should apply, Posr v. Doherty, 944 F.2d 91 (2nd Cir. 1991), as did the Third Circuit in Johnson v. Knorr, 477 F.3d 75 (3rd Cir. 2007) and the Eleventh Circuit in Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020). Under this charge-specific approach, a § 1983 Fourth Amendment malicious prosecution can go forward on a baseless criminal charge even though there was probable cause to support other criminal charges brought alongside the baseless criminal charge.

Comments

One question–the background of tort liability question–is what the common law of malicious prosecution was in 1871, when § 1983 was enacted. According to the Eleventh Circuit in Williams, 965 F.3d at 1162, and as set out in the Petition for Certiorari, “Centuries of common-law doctrine urge a charge-specific approach, and bedrock Fourth Amendment principles support applying that approach.” In reaching this conclusion, the Eleventh Circuit relied on nineteen-century treatises, American cases and British cases. This consideration will play a role, perhaps major, in the Court’s ultimate resolution of the case.

A second question is one of policy. The Petitioners maintain that under the “any-crime” rule a police officer can protect himself or herself from a § 1983 Fourth Amendment malicious prosecution claim simply by adding a relatively minor criminal charge for which there was probable cause to a serious criminal charge for there was no probable cause. They therefore argue that the “any crime” rule would undermine police officer accountability.

Third, one might point out that every such § 1983 Fourth Amendment malicious prosecution claim, even brought in the same case with others, raises a separate constitutional violation issue which must be analyzed independently of the others. Along similar lines, every such claim is subject to a separate qualified immunity inquiry into clearly settled law.

Finally, observe that if the Court adopts the “charge-specific” rule and rejects the “any-crime” rule, the plaintiff in a § 1983 Fourth Amendment malicious prosecution case involving more than one criminal charge has the burden of pleading and proving that the baseless charge was the cause in fact and proximate cause of particular damages, and those damages must be separate and distinct from the damages resulting from the criminal charge or charges based on probable cause. In some situations this may prove to be complicated. On the other hand, there is much § 1983 litigation brought involving different constitutional violations alleged in the same cases: sorting out the damages connected to each of the claims has not proved to be insurmountable for judges and juries.

My prediction is that the Court will adopt the “charge-specific” rule, which is the better one.