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Justices Consider ‘Upside Down’ Standard for Suing Police (1)

Oct. 12, 2021, 5:13 PMUpdated: Oct. 12, 2021, 9:06 PM

Supreme Court justices on Tuesday scrutinized what Justice Brett Kavanaugh called an “upside down” rule for suing police, requiring plaintiffs to show that their criminal cases ended in ways that indicate their innocence.

Even if a high-court majority thinks that rule is wrong, it’s unclear what the court will decide, exactly, because the justices spent much of the argument exploring whether and how the underlying seizure claim in the case exists and, in turn, how the court should approach the dispute.

The appeal stems from the case of Larry Thompson. He was arrested at home in Brooklyn in 2014, by NYPD 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.

Thompson says he should be able to sue in federal court for unreasonable seizure pursuant to legal process, a so-called malicious prosecution claim. But the New York-based U.S. Court of Appeals for the Second Circuit said he couldn’t bring such a claim because he couldn’t show “affirmative indications of innocence,” like an acquittal.

That’s an “upside down” rule, said Kavanaugh, who’s known for playing devil’s advocate at arguments.

Such a rule, the justice said, “would seem to have the perverse consequence of ensuring that some of the most deserving plaintiffs, those who are falsely accused and whose cases were dismissed early on, could not sue unless they could show, dig into the prosecutor’s mindset, whereas those who went to trial could sue.”

Representing the officers, New York City Law Department lawyer John Moore said the “more foundational” issue is that the malicious prosecution claim Thompson pressed doesn’t exist under the Fourth Amendment.

The notion of deciding a real issue in the context of a non-existent one led Justice Samuel Alito to wonder about a hypothetical smoking centaur.

“Let’s say someone is questioning a medical expert, an expert on lung cancer, and the question is, Doctor, I’m going to ask you a question about a centaur, which is a creature that has the upper body of a human being and the lower body and the legs of a horse,” Alito said. “And what I want to know is, if a centaur smokes five packs of cigarettes every day for 30 years, does the centaur run the risk of getting lung cancer?”

A ruling is expected by July.

Favorable Termination

Under the Supreme Court’s 1994 decision in Heck v. Humphrey, plaintiffs in these cases need to show that criminal proceedings terminated in their favor.

The majority of courts, including the Second Circuit, use the affirmative indication of innocence standard to determine favorable termination.

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 in more ambiguous situations like Thompson’s could proceed.

“A criminal proceeding terminates in favor of the accused when it ends and the prosecution has failed to obtain a conviction,” Thompson’s lawyer, Amir Ali of the MacArthur Justice Center, said at the argument. “That’s the thrust of it.”

The Eleventh Circuit standard was authored by Judge William Pryor, a longtime conservative favorite who was on former President Donald Trump’s list of potential Supreme Court candidates.

The case is Thompson v. Clark, U.S., No. 20-659.

(Adds argument detail, transcript. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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