There were no less than two front page mass shootings this month. Communities typically look to their legislators to address gun violence, but the courts may also have a role to play, even if they don’t know it yet. This article discusses the evolving doctrine of judicial privilege and the subtle role the privilege may play in making communities safer.

Traditionally, the judicial privilege precluded defamation claims based on statements made in the course of judicial proceedings. The purpose of the privilege was to “afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court and to counsel to enable him to best represent his client’s interests,” see Binder v. Triangle Publications, 275 A.2d 53, 56 (Pa. 1971).

Over the past three decades, the privilege doctrine has evolved. First, Pennsylvania courts have expanded the privilege to other torts, such as common law abuse of process and invasion of privacy. See, e.g., Passon v. Spritzer, 419 A.2d 1258 (Pa. Super. 1980). Second, courts now recognize that “the existence of the privilege does not depend upon the motive of the defendant in making the allegedly defamatory statement,” as in Marino v. Fava, 915 A.2d 121, 124 (Pa. Super. 2006). Third, the courts have also applied the privilege to quasi-judicial proceedings. For example, in Pawlowski v. Smorto, 588 A.2d 36, 42 (Pa. Super. 1991), the court held that the privilege applies to “information given and informal complaints made to a prosecuting attorney or other proper officer preliminary to a proposed criminal prosecution.”

This past June, in Sacks v. Stinsky, No. 18-cv-3500, 2019 WL 2521635, at *4 (E.D. Pa. June 19, 2019), one court held that a private individual’s statements to law enforcement are “absolutely privileged under Pennsylvania law” and cannot form the basis of a tort claim against the individual. In Sacks, the plaintiff sued various law enforcement and private actors for various torts in connection with a criminal investigation into a domestic dispute between him and his wife. One of the claims was for malicious prosecution, for which a private individual may be liable if he “initiates or procures the institution of criminal proceedings without probable cause and primarily for a purpose other than that of bringing the offender to justice …” See Bradley v. General Accident Insurance, 778 A.2d 707, 710 (Pa. Super. 2001).

Justin Grundowski, a private individual who called the police to report the dispute, moved to dismiss Sacks’ state law tort claims against him, asserting that his statement to the police was privileged. The court agreed, holding that “Grundowski’s statement is absolutely privileged under Pennsylvania law and Sacks cannot prevail on a tort claim based on Grundowski’s reporting him to the police.”

The Pennsylvania appellate courts do not yet appear to have addressed this tension between the common law of malicious prosecution and the common law judicial privilege. In Freundlich & Littman v. Feierstein, 157 A.3d 526, 534-35 (Pa. Super. 2017), the Superior Court held that the privilege does not bar claims for wrongful use of civil proceedings under the Dragonetti Act. But the public policy in favor of encouraging access to the judicial system is likely stronger when it comes to making allegations of criminal conduct and communicating those allegations to law enforcement.

As the Pennsylvania Supreme Court long ago said of malicious prosecution claims: “There is no other cause of action which is more carefully guarded. Unfortunate defendants who are wrongfully subjected to the judicial process must bear that risk except in the most extreme cases.”

Malicious prosecution is an action that runs counter to obvious policies of the law in favor of encouraging proceedings against those who are apparently guilty, and letting finished litigation remain undisturbed and unchallenged. It never has been regarded with any favor by the courts, and it is hedged with restrictions that make it very difficult to maintain. See Miller v. Pennsylvania Railroad, 89 A.2d 809, 810 (Pa. 1952).

These are not just the isolated ruminations of a 70-year-old court. The courts of this commonwealth have reiterated these principles multiple times since, noting that if these restrictions on malicious prosecution claims were not in place, “it would deter men from approaching the courts of justice for relief.” See Alleyne v. Pirrone, 180 A.3d 524, 540 (Pa. Commw. 2018).

So how do the courts balance these competing interests, namely, access to the criminal justice system and protection from abuse of that system? The answer may be in Sacks. Notably, the court issued no opinion as to whether the privilege bars malicious prosecution claims against law enforcement. Rather, the court only applied the privilege doctrine to dismiss claims against the private citizen who reported an alleged crime to the police. And that is a critical distinction. Law enforcement officers wield significantly more power over an individual’s liberty interests than an ordinary citizen does. And with greater power should come greater responsibility, such as liability for malicious prosecution.

But in a “see something, say something” world, the courts should be reluctant to do anything that would discourage private citizens from contacting the police when their suspicions are aroused. If the courts continue to allow malicious prosecution claims to proceed against private individuals, then there can be no doubt that some people will choose not to go to the police out of a fear of civil liability, even though they should. And although it is inevitable that some will falsely and maliciously accuse others of committing crimes, there are safeguards in place. For example, police should have a duty to conduct an independent investigation of any tips they receive, and, in the most egregious cases, there may be criminal consequences for filing a false police report. In this age of crime and law enforcement, however, civil liability for malicious prosecution may no longer be appropriate.

To conclude in the starkest of terms: suppose you are in a coffee shop and overhear two 20-somethings talking about something having to do with “guns,” “shooting” and a “mall.” For all you know, they could be talking about a video game. They could also be talking about committing a heinous crime. Today, either is plausible. Regardless, concerned that you could be sued for reporting incorrect information to the police, you decide to keep quiet. The next day, your worst fears come to light on the evening news.

The courts will have to grapple with this possibility and decide whether and to what extent the judicial privilege leaves room for the common law of malicious prosecution.

Ethan M. Simon is an associate in Blank Rome’s Philadelphia and Princeton offices. He handles a variety of commercial litigation matters and focuses on appellate advocacy. He can be reached at [email protected].