Nahmod Law

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).

Comments

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 https://nahmodlaw.com/?s=thompson+v.+clark. 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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After I posted earlier, I realized that I had inadvertently omitted two per curiam excessive force decisions from the 2021 Term in which the Supreme Court ruled in favor of granting qualified immunity to law enforcement officers. So below is the corrected list, with my apologies.

Supreme Court Decisions in the 2021 Term

• Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
• Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
• New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
• Vega v. Tekoh: Miranda violations standing alone not actionable under §1983 (see §3:25)
• Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
• Thompson v. Clark: §1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
• City of Tahlequah v. Bond: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
• Riva–Villegas v. Cortesluna: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
• Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution as §1983 claim and not habeas corpus (see §§9:57 and 9:64)

Some of you may be interested in a short list of recent Supreme Court section 1983-related decisions. Here are decisions from the Court’s 2021 Term, together with the current two cert-granted cases for the 2022 Term. I hope you find the list useful.

Please note that section references are to the forthcoming 2022-23 Edition of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West, Westlaw).

Thanks.

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Supreme Court Decisions in the 2021 Term

• Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
• Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
• New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
• Vega v. Tekoh: Miranda violations standing alone not actionable under section 1983 (see §3:25)
• Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
• Thompson v. Clark: section 1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
• Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution is section 1983 claim and not habeas corpus (see §§9:57 and 9:64)

Certiorari Granted for Decision in the 2022 Term

      • Health and Hospital Corp. of Marion County v. Talevski: does Spending Clause legislation give rise to privately enforceable rights under section 1983? (see §2:38)

• Reed v. Goertz: when does statute of limitations for section 1983 claim seeking DNA testing begin to run? (see §9:58)

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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

1. 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.
2. 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.
3. As nicely pointed out in one of the Amicus briefs, requiring an affirmative indication of innocence is inconsistent with the presumption of innocence.
4. 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.
5. 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.

IMPORTANT UPDATE: THE SUPREME COURT GRANTED CERTIORARI ON MARCH 8, 2021.

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