Er … yay? This sounds like a stirring victory for the Fourth Amendment … but might end up undermining efforts to curtail judicial activism. Earlier today, the Supreme Court ruled 6-3 that those charged in crimes that later prove to have been recklessly charged do not have to go through a trial and acquittal to seek compensation. Malicious prosecution can be established even if defendants never come to trial at all:

The Supreme Court on Monday made it easier to sue police and the government for malicious prosecution when charges are later dropped.

In a 6-3 ruling, the court said that in order to sue, a defendant doesn’t have to be found not guilty by a judge or jury and prosecutors don’t have to state that they wrongly filed charges. It’s enough, the court said, if the charges are simply dismissed.

“The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed,” Justice Brett Kavanaugh wrote for the court’s majority.

Larry Thompson won his case in federal district court, only to have it overturned by the Second Circuit. A malicious prosecution can only be established, that appellate ruling declared, when a jury has exonerated a defendant or another form of explicit exoneration takes place. Kavanaugh, writing for the majority, reached back to an 1871 statute to reject the idea that a formal exoneration was necessary. From the summary:

(a) To determine the elements of a constitutional claim under §1983, this Court’s practice is to first look to the elements of the most analogous tort as of 1871 when §1983 was enacted, so long as doing so is consistent with “the values and purposes of the constitutional right at issue.” Manuel v. Joliet, 580 U. S. 357, 370. Here, as most of the Courts of Appeals to consider the question have determined, the most analogous tort to this Fourth Amendment claim is malicious prosecution. Pp. 4–7.

(b) In accord with the elements of the malicious prosecution tort, a Fourth Amendment claim under §1983 for malicious prosecution requires the plaintiff to show a favorable termination of the underlying criminal case against him. The parties to this case, as well as the lower courts, disagree about what a favorable termination entails, i.e., is it sufficient to show that Thompson’s prosecution ended without a conviction or must he also show that his prosecution ended with some affirmative indication of innocence? To resolve that disagreement, the Court looks to American malicious prosecution tort law as of 1871. At that time, most American courts agreed that the favorable termination element of a malicious prosecution claim was satisfied so long as the prosecution ended without a conviction. A plaintiff could maintain a malicious prosecution claim when, for example, the prosecutor abandoned the criminal case or the court dismissed the case without providing a reason.

The American tort-law consensus as of 1871 did not require a plaintiff in a malicious prosecution suit to show that his prosecution ended with an affirmative indication of innocence, and this Court similarly construes Thompson’s Fourth Amendment claim under §1983 for malicious prosecution. Doing so is consistent with “the values and purposes” of the Fourth Amendment. Manuel, 580 U. S., at 370. Questions concerning whether a criminal defendant was wrongly charged, or whether an individual may seek redress for a wrongful prosecution, cannot reasonably depend on whether the prosecutor or court happened to explain why charges were dismissed. And requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence is not necessary to protect officers from unwarranted civil suits, as officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity. Pp. 7–11.

That does seem to be a rational position in regard to malicious prosecution, which imposes significant costs on its victims long before a case even comes to trial. In some cases, they lose income from being jailed, have to commit capital to get bail, pay dearly for effective legal representation, and so on. If police and prosecutors get it wrong either through reckless disregard or explicit malice, then telling such victims that they can’t put that evidence in front of  a jury in a civil action effectively grants impunity to prosecutors and police for misdeeds — as long as it doesn’t get to a final verdict of some sort. Whatever that is, it’s not justice.

So what’s the problem? For one thing, it’s notable to see the actual split. It’s not the usual 6-3; this one has Clarence Thomas, Neil Gorsuch, and Samuel Alito in dissent. That doesn’t necessarily make Kavanaugh wrong — he’s a pretty bright jurist all on his own — but it’s unusual enough to sit up and take notice.

And what we can notice here is that Kavanaugh’s grounding of this issue in the Fourth Amendment is at least suspect, if not entirely novel. Writing the dissent, Alito writes that civil torts for malicious prosecution don’t fall under the Fourth Amendment as such, and that this decision actually creates “a novel hybrid claim” without constitutional or statutory framework:

The Fourth Amendment prohibits “unreasonable searches and seizures.” And a Fourth Amendment claim based on an unreasonable seizure has two indispensable elements: (i) there must have been a “seizure,” i.e., an arrest or some other use of “‘physical force’ or a ‘show of authority’ that ‘in some way restrain[s] the liberty’ of [a] person,” Torres v. Madrid, 592 U. S. ___, ___ (2021) (slip op., at 3), and (ii) the seizure must have been “unreasonable,” which means, in the case of a full-blown arrest, that the officers making the arrest must have lacked probable cause. District of Columbia v. Wesby, 583 U. S. ___, ___ (2018) (slip op., at 7).

Malicious prosecution, on the other hand, requires proof that “(i) the suit or proceeding was ‘instituted without any probable cause;’ (ii) the ‘motive in instituting’ the suit ‘was malicious . . . ; and (iii) the prosecution ‘terminated in the acquittal or discharge of the accused.’” Ante, at 6 (quoting T. Cooley, Law of Torts 180 (1880) (Cooley)); see also Manuel v. Joliet, 580 U. S. 357, 378 (2017) (ALITO, J., dissenting).

A comparison of the elements of the malicious-prosecution tort with the elements of a Fourth Amendment unreasonable-seizure claim shows that there is no overlap. That is, a plaintiff suing for unreasonable seizure need not prove any of the elements of common-law malicious prosecution, and a plaintiff suing for common-law malicious prosecution need not prove any of the elements required to establish an unreasonable seizure.

Furthermore, a true Fourth Amendment claim does not require the malice (or reckless disregard) to succeed:

An unreasonable-seizure claim also does not require “malice.” The Court has “almost uniformly rejected invitations to probe subjective intent” in Fourth Amendment cases. Ashcroft v. al-Kidd, 563 U. S. 731, 737 (2011). If a law enforcement officer makes an arrest without probable cause, the arrest is unreasonable and therefore unconstitutional even if the officer harbors no ill will for the arrestee. Likewise, if an officer makes an arrest with probable cause, there is no Fourth Amendment violation regardless of the “actual motivations of the individual officers involved.” …

Finally, the validity of an unreasonable-seizure claim is not dependent on the outcome of any prosecution that happens to follow a seizure. A person who is arrested without probable cause but then convicted based on evidence discovered after the arrest is not barred from recovering simply because he or she cannot show a favorable termination to the proceeding. See Wallace v. Kato, 549 U. S. 384, 389– 392 (2007); cf. Heck v. Humphrey, 512 U. S. 477, 487, n. 7 (1994) (a person may bring “a suit for damages attributable to an allegedly unreasonable search” even if he or she was convicted). Thus, an unreasonable-seizure claim may be shown without proving any of the elements of a common-law malicious-prosecution claim.

In other words, a true constitutional claim should stand on its own, res ipsa loquitur. There is nothing inherently unconstitutional in prosecution, nor is it an inherently unreasonable exercise of search and seizure. Malicious prosecution lawsuits don’t even require a seizure, Alito later writes; it’s an entirely separate category of claims. Kavanaugh and the majority erred in interpreting Albright v Oliver (1994), Alito argues, which Kavanaugh barely explains in citing it for support. Alito goes into that precedent at more length:

The Court relies on certain lower court decisions that accepted the strange concept of a Fourth Amendment malicious-prosecution claim, but that line of cases developed in large part because of a misunderstanding of the tersely worded plurality opinion in Albright, 510 U. S. 266. See Hernandez-Cuevas v. Taylor, 723 F. 3d 91, 99 (CA1 2013) (noting that “dicta” in Albright led many jurisdictions to “recogniz[e] a Fourth Amendment malicious prosecution claim”). Instead of simply accepting that misreading, we should explain what Albright actually decided and what the plurality said.

In that case, Kevin Albright was arrested and bound over for trial without probable cause. The prosecution was dismissed before trial, and Albright then sued under 42 U. S. C. §1983. The District Court dismissed his suit; the Court of Appeals affirmed the dismissal; and when the case was argued in this Court, the only claim that Albright pressed was that his prosecution without probable cause violated substantive due process. 510 U. S., at 268 (plurality opinion). He did not advance either a Fourth Amendment claim or a malicious-prosecution claim.

This Court affirmed the dismissal of Albright’s substantive due process claim, and while no opinion gained majority approval, both the four Justices who joined the plurality opinion and the three justices who concurred in the judgment agreed that substantive due process does not include the right to be free from prosecution without probable cause …

When the plurality commented on the Fourth Amendment, it was addressing Albright’s prosecution-withoutprobable-cause claim, not malicious prosecution. And in connection with the prosecution-without-probable-cause claim, the plurality made the following two points. First, the plurality noted that “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing [the] claims.’” Id., at 273. Second, the plurality observed that the Fourth Amendment is the constitutional provision that deals with “pretrial deprivations of liberty.” Id., at 274.

What this discussion suggested was that if any provision of the Constitution provided a home for Albright’s prosecution-without-probable-cause claim, the Fourth Amendment was a better bet than the Fourteenth Amendment’s Due Process Clause. But the plurality did not conclude or even suggest that a prosecution-without-probable-cause claim could be brought under the Fourth Amendment. See id., at 274–275 (expressly declining to express a view on the question). Indeed, the plurality expressly reiterated that “the accused is not ‘entitled to judicial oversight or review of the decision to prosecute,’ ” suggesting instead that the harm to Albright—if any—was that he was “not merely charged” but also “submitted himself to arrest.”

Both the opinion and the dissent are worth reading, but it does raise a particular concern. The outcome of this decision may be just in this case, but the method that Kavanaugh et al took looks a bit like … judicial activism. Alito notes that the plaintiff could have filed a lawsuit in New York courts relying on legal precedent on malicious prosecution but chose instead to make a federal case instead. The proper role of the court — from an originalist/judicial modesty standpoint, anyway — would be to reject the appeal and either send the plaintiff to the state court, refer the matter to Congress in regard to federal prosecutions, or both.

Thompson got justice, but the Supreme Court may have created a headache that will take years or decades to unwind.

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