A coalition of 57 prosecutors, ex-Justice Department officials, and former judges is calling on the Supreme Court to impose a more plaintiff-friendly standard for certain civil rights suits lodged against law enforcement after criminal cases are dismissed.
The group contends that the bar, which is widely applied but has split federal appellate courts, is too high for people whose Fourth Amendment rights were violated and want to sue officers for malicious prosecution.
“The constitutional claim here is one of the most serious—that an officer has abused the legal process to put someone in jail and have them charged with a crime, without having any lawful basis,” said Amir Ali, deputy director of the MacArthur Justice Center’s Supreme Court and Appellate Program. He represents the man at the center of the case, Larry Thompson, who’s trying to sue New York City Police officers.
The amicus coalition adds firepower to the civil rights claim from a perhaps unlikely source—people who’ve worked to put criminal defendants away. But the current and former officials say the prevailing standard, which requires plaintiffs to show proof of their innocence before they can sue, doesn’t take into account realities of the system. A prosecutor’s decision to dismiss a case doesn’t necessarily indicate guilt or innocence.
Steve Art, a Chicago lawyer who litigates civil rights claims, said the standard “is almost impossible to satisfy.”
A partner at Loevy & Loevy, Art is urging the justices in another amicus brief—from civil rights, racial justice, and criminal defense groups—to take up the issue.
Law enforcement accountability is at stake, Art said. The more lawsuits are limited, he said, “the more wild police behavior on the street becomes.”
Interest of Justice
Both sets of outside groups want the justices to grant review of Thompson’s pending petition.
Thompson was arrested at home in Brooklyn in 2014, by officers investigating possible child abuse. He was jailed for two days and charged with obstructing governmental administration and resisting arrest.
The prosecution ultimately dismissed the case “in the interest of justice,” saying nothing directly about Thompson’s innocence in the process.
Among the civil claims Thompson then pursued against the officers was malicious prosecution. He lost other claims at trial, but the malicious prosecution claim couldn’t proceed because he couldn’t show “affirmative indications of innocence,” like an acquittal.
Under the Supreme Court’s 1994 decision in Heck v. Humphrey, plaintiffs can’t bring such claims unless criminal proceedings terminated in their favor.
The majority of courts, including the U.S. Court of Appeals for the Second Circuit, which ruled against Thompson, use the affirmative indication of innocence standard.
Thompson and his supporters want the justices to adopt the Atlanta-based Eleventh Circuit’s requirement: that the criminal case ended in a manner not inconsistent with innocence. Under that standard, claims would still be barred if a defendant gets convicted and loses on appeal, but claims following more ambiguous situations like Thompson’s could proceed.
The Eleventh Circuit decision was written last year by Judge William Pryor, a longtime conservative favorite who was on former President Donald Trump’s list of potential Supreme Court candidates.
Harry Sandick, a former New York federal prosecutor not involved with this litigation, noted that adopting the Eleventh Circuit standard wouldn’t mean that a plaintiff’s claim necessarily prevails in the end, “only that it can survive motion practice even if the record is silent about the basis for the dismissal.”
Other barriers like qualified immunity still exist regardless of the outcome of Thompson’s petition.
City Says Wait
New York City Law Department spokesman Nick Paolucci said Thompson’s civil jury “already rejected the plaintiff’s contentions that the police officers acted improperly.”
“In general,” Paolucci said, “these claims raise the question of why police officers should be sued for alleged wrongful prosecutions when they don’t make the decision to prosecute.”
Prosecutors have absolute immunity for prosecution decisions.
In their Feb. 3 opposition brief, New York City’s lawyers said it’s premature for the justices to tackle the issue.
“The Court’s intervention is not warranted to assess what is, at most, an incipient question about malicious prosecution’s favorable termination element, especially as the sole decision deviating from the otherwise universal view arose just months ago,” they said of Pryor’s Eleventh Circuit opinion.
Thompson will have the opportunity to reply to the government’s opposition brief before the justices consider whether to grant review. The justices will likely consider the petition by sometime in March. If they grant review, the case would likely be heard early next term, which begins in October.
The case is Thompson v. Clark et al., U.S., No. 20-659, petition pending.