Section 1983 malicious prosecution law has been permeated with doctrinal difficulties for a very long time. While “malicious prosecution” may be a handy moniker, when all is said and done the §1983 plaintiff has to establish a violation of her federal constitutional rights. Wood v. Kessler, 323 F.3d 872, 882 (11th Cir. 2003) (§1983 malicious prosecution claim is matter of federal law). Accord Blum v. Lopez, 901 F.3d 1352, 1358 (11th Cir. 2018) (federal not state law governs §1983 malicious prosecution claims).

The U.S. Court of Appeals for the Second Circuit requires §1983 malicious prosecution plaintiffs to demonstrate an unreasonable Fourth Amendment seizure and the four common-law elements of malicious prosecution: (1) initiation of a criminal prosecution; (2) without probable cause; (3) malice; and (4) termination of the prosecution in favor of the accused. Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018).

The Second Circuit in Lanning recently held that the favorable termination element should be determined on the basis of a uniform federal standard, namely, termination with affirmative indication of innocence, not the law of the state which prosecuted the §1983 plaintiff. The federal law, “favorable termination” “affirmative indication of innocence” standard is consistent with traditional common-law tort law. Id. at 27.

The circuit court in Lanning found that the district court erred in applying New York's more lenient “so long as the circumstances surrounding the final termination are not inconsistent with the innocence of the accused” standard to plaintiff's §1983 Fourth Amendment malicious prosecution claim. Lanning, 908 F.3d at 27 (discussing New York law and stating that state courts are entitled to deviate from traditional common law tort law).

Although Lanning requires district courts in the Second Circuit to apply the uniform federal definition of favorable termination to §1983 Fourth Amendment malicious prosecution claims, they must still apply the state law of favorable termination for state law malicious prosecution claims asserted under diversity or supplemental jurisdiction. Lanning, 908 F.3d at 28.

Misleading Label

Things got off to a bad start when §1983 practitioners and federal judges routinely employed the label “§1983 malicious prosecution claim.” There is no such animal. Section 1983 authorizes the assertion of a violation of federal constitutional rights (and in some cases, federal statutory rights) against state and local officials and municipalities. It does not provide a claim for relief for violations of state law. Characterizing the plaintiff's claim as a “§1983 malicious prosecution claim” clouds the analysis and causes mischief. The plaintiff must allege a violation of a right protected by the federal Constitution, such as the Fourth Amendment right to be free from unreasonable governmental seizures. See Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018) (on remand from 137 S.Ct. 911 (2017), circuit court held that “'Fourth Amendment malicious prosecution' is the wrong characterization. There is only a Fourth Amendment claim-the absence of probable cause that would justify the detention. The problem is the wrongful custody. '[T]here is no such thing as a constitutional right not to be prosecuted without probable cause.' But there is a constitutional right not to be held in custody without probable cause.”) (citations omitted).

Guidance Needed

The initial Second Circuit decisions on §1983 malicious prosecution required the plaintiff to prove the elements of common-law malicious prosecution. Singleton v. City of N.Y., 632 F.2d 185 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981); accord Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995); see also Albright v. Oliver, 510 U.S. 266, 270 n.4 (1994) (citing Lee v. Mihalich, 847 F.3d 66, 70 (3d Cir. 1988)). This position makes sense only if it turns out that the same common-law elements of malicious prosecution also establish a constitutional violation. It was far from obvious that they established a violation of either substantive due process or the Fourth Amendment. The federal courts' excessive entanglement of constitutional malicious prosecution and state law has been a major source of the confusion.

The Supreme Court has failed to provide much needed guidance. When presented with a §1983 malicious prosecution claim in Albright v. Oliver, supra, the court not only failed to deliver a a majority opinion, but the justices wrote six separate plurality, concurring, and dissenting opinions, some of which were joined by other justices. When the smoke cleared, and all of the complex math was finalized, courts and commentators were able to conclude only that the court in Albright (1) rejected a substantive due process right not to be prosecuted without probable cause; and (2) left open the possibility that the Fourth Amendment prohibition against unreasonable seizures might support a §1983 malicious prosecution claim. But because Kevin Albright inexplicably failed to assert a Fourth Amendment claim, the U.S. Supreme Court didn't decide the Fourth Amendment issue.

Revamped Approach

The Second Circuit revamped its §1983 malicious prosecution jurisprudence in light of Albright v. Oliver, holding that a §1983 “malicious prosecution” claimant must show an unreasonable Fourth Amendment seizure resulting from a deprivation of liberty from the issuance of legal process, and satisfaction of the common-law elements of malicious prosecution. Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995), cert. denied, 517 U.S. 1189 (1996); accord Lanning v. City of Glens Falls, 908 F.3d at 24 (citing Washington v. County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004)). Several other circuit courts also adopted this approach. Martin A. Schwartz, Vol. 1 Section 1983 Litigation, Claims and Defenses §3.18(4th ed. 2019).

Defining 'Seizure'

Litigators and the courts were now faced with a new issue, namely, what constitutes a Fourth Amendment “seizure” in this context. The Supreme Court in Manuel v. City of Joliet, 137 S. Ct. 911 (2017) resolved that pretrial detention constitutes a seizure that continues throughout the period of detention, including after a state court's issuance of legal process, for example, a determination of probable cause to hold the criminal defendant for further proceedings. But the court in Manuel conspicuously steered clear of any discussion of Fourth Amendment malicious prosecution, even though it appeared certiorari had been granted on that issue.

And, the court did not discuss the difficult issue of whether other pretrial restrictions placed on criminal defendants short of confinement, such as posting bail, required court appearances, and travel restrictions, either alone or in combination, constitute a seizure. The lower federal courts have been grappling with this issue. See, e.g., Black v. Montgomery County, 835 F.3d 358 (3d Cir. 2016), cert. denied, 137 S. Ct. 2093 (2017); Borg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010); Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007); Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998); Murphy v. Lynn, 118 F.2d 738 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998); Spiller v. District of Columbia, 142 F. Supp. 3d 132 (D.D.C. 2015).

Elements of the Claim

Does it make sense that the plaintiff, in addition to demonstrating an unreasonable seizure, must also satisfy the common-law elements of malicious prosecution? Let's look at each of the elements:

Initiation: A Fourth Amendment malicious prosecution claim cannot be asserted against the prosecutor who initiated the prosecution because absolute prosecutorial immunity would render the claim a non-starter. Imbler v. Pachtman, 424 U.S. 409 (1976). The claim would have to be asserted against a law enforcement officer, such as a police officer or lab technician who played an active role in bringing about the prosecution. See Manuel, 137 S. Ct. at 925 (Alito, J., dissenting) (noting that the defendants are typically law enforcement officers who have no power to initiate or dismiss a criminal prosecution).

The initiation element makes sense because the §1983 plaintiff's claim challenges the commencement of a criminal prosecution. Like favorable termination, it should be evaluated under uniform federal law. Note, however, that the U.S. Court of Appeals for the Seventh Circuit now allows only a challenge to the detention, not the prosecution. Manuel v. City, 903 F.3d 667 (7th Cir. 2018)

Probable Cause: The requirement that the plaintiff show a lack of probable cause makes sense because that is the heart of a Fourth Amendment unreasonable seizure claim. Note that in the Seventh Circuit the issue is whether there was probable cause for the detention, not for the prosecution. Manuel, id.

Malice: There are very persuasive arguments that “malice” should not be an element of a Fourth Amendment unreasonable seizure claim. The U.S. Court of Appeals for the Sixth Circuit in Sykes v. Anderson, 625 F.3d 294, 309 (6th Cir. 2010) held that malice is not an element of a Fourth Amendment malicious prosecution claim because the Fourth Amendment requires an evaluation from an objectively reasonable officer perspective; the officer's intent is almost always irrelevant.

Justice Samuel Alito sounded the same theme in his Manuel dissent. 137 S. Ct. at 925 (while “malice is the core element of a [common-law] malicious prosecution claim,” “the Fourth Amendment standard of reasonableness is fundamentally objective,” and subjective and objective standards simply “cannot co-exist”). This argument is very persuasive and, at first opportunity, the Second Circuit should eliminate malice as an element of the §1983 claim.

Favorable Termination: It is debatable whether “favorable termination” is a proper element of a Fourth Amendment malicious prosecution claim. On the one hand it seems logical to require a civil plaintiff who challenges the initiation of a criminal prosecution against him to show that it terminated in his favor. On the other hand, as Alito argued in his Manuel dissent, “malicious prosecution's favorable termination element makes no sense when the claim is that a seizure violated the Fourth Amendment [ because] the Fourth Amendment prohibits all unreasonable seizures—regardless of whether a prosecution is ever brought or how it ends. A 'Fourth Amendment wrong' is fully accomplished when an impermissible seizure occurs. The amendment is violated, and the injury is inflicted no matter what happens in any later proceedings.” 137 S. Ct. at 926 (Alito, J., dissenting) (citation omitted).

Even if “favorable termination” were not a proper element of a §1983 unreasonable seizure claim, the §1983 plaintiff would still have to overcome the holding in Heck v. Humphrey, 512 U.S. 477 (1994) that a §1983 claim which necessarily implicates the validity of the plaintiff's conviction is not cognizable unless and until the conviction has been overturned on direct appeal, collateral review, or executive order.

The court found that the “hoary [common-law] principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to §1983 damages actions that necessarily requires the plaintiff to prove the unlawfulness of his conviction…, just as it has always applied to actions for malicious prosecution.” Heck, 512 U.S. at 485 (footnote omitted). Heck invoked the common-law, not as an element of the constitutional claim, but to determine the cognizability of §1983 claims that challenge a plaintiff's conviction or sentence. In other words, the court in Heck invoked the common law to determine the meaning of §1983 itself.

While “Heck cognizability” may be “similar” to malicious prosecution's “favorable termination” (Michael Avery, et al, Police Misconduct, Law and Litigation §9:6 (3d ed. 2018)), in the author's view, Heck cognizability, rather than favorable termination, is the correct inquiry.

Nevertheless, the favorable termination element is well entrenched in Second Circuit §1983 malicious prosecution law. See, e.g., Murphy v. Lynn, 118 F.3d at 949-50 (2d Cir. 1987) (dismissal on speedy trial grounds is favorable termination), cert. denied, 522 U.S. 1115 (1998); Singleton v. City of N.Y., 632 F.2d 185 (adjournment in contemplation of dismissal not favorable termination). In Lanning, the circuit court held that state court dismissals of criminal charges against David Lanning for, inter alia, “lack of jurisdiction” and in the “interest of justice” were not favorable terminations because they did not affirmatively indicate Lanning's innocence.

Conclusion

We have covered a lot of territory and explored many important issues. Several of the issues discussed are difficult. Lanning's adoption of a uniform rule of favorable termination is a positive development. Eliminating the malice element is the next logical step.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.