U.S. Supreme Court Expands Scope of Favorable Termination By Michael Joseph on April 10, 2022

Our New York City malicious prosecution lawyers and Westchester false arrest attorneys know that the Federal District Courts and Second Circuit have been adopting unduly narrow definitions to prevent Plaintiffs who have been wrongfully arrested and prosecuted from seeking civil redress for the harm done to their lives by the wrongful prosecution. The main cause of action available to a person who was wrongfully subjected to a criminal prosection is the malicious prosecution lawsuit. Our NYC malicious prosecution and false arrest lawyers know that to prove a malicious prosecution case, a Plaintiff need to establish that a prosecution was initiated or continued against them without probable cause to believe the prosecution could succeed, with malice and that the prosecution was resolved in their favor. The Federal Courts in particular have utilized the last element, which is the favorable termination element, to create artificial barriers to prevent Plaintiffs from suing. The United States Supreme Court's decision in Thompson v. Clark, which drastically broadened the definiation of when the end to a prosecution is in favor of the accused. This will allow a larger number of people who were maliciously prosecuted to sue. 

For years, our NYC malicious prosecution lawyers have strenuously disagreed with Federal Court Judges who sought to artificially restrict who can bring a malicious prosecution lawsuit based upon the manner in which the prosecution ended. Most New York criminal defense lawyers know that when a prosecutor realizes their case is meritless, they will often dismiss it in the interest of justice to avoid going to trial and losing. Other times, they will just dismiss the case, without stating why they are dismissing the case. An application in contemplation of dismissal is another method that prosecutors use to avoid going to trial and losing on baseless cases. In still other cases, New York defense attorneys move to dismiss a case for facial insufficiency, which is a broad category, but one subset of these cases is that the allegations do not amount to a crime. For years, the Federal Courts have scrutinized how a criminal case was dimissed to restrict the number of malicious prosecution cases that could be brought. In other words, it was not enough that a criminal prosecution was dismissed, rather it had to be dismissed so as to indicate the innocence of the accused. This lead to the absurd contradiction, that a criminal case was dismissed, but for malicious prosecution purposes, the Court did not consider the case terminated in the favor of the accused. The most absurd and restrictive case was the Second Circuit's 2018 decision in Lanning v. Glen Falls, where the Court held that for a dismissal to be in the accused's favor, for a malicious prosecution suit, the termination must end in a manner that indicates the innocence of the accused. So under the Lanning rule, where a prosecutor abaondoned the case, by just dimissing it, that was not in the accused's favor, unless the prosecutor indicated that it was being dismissed because the accused was innocent. The New York Courts under Smith-Hunter followed a slightly more liberal rule that the conviction was in the accused's favor so long as it was not inconsistent with innocence.  The Eleventh Circuit followed a rule, which the Supreme Court adopted and recognized  in Laskar v. Hurd, that a favorable termination occurs so long as the criminal prosecution ends without a conviction.  

In Thompson, Judge Kavanaugh, a Trump appointee, joined the liberal minority to expand the definition of when a termination was in favor of the accused. Perhaps, the stigma associated with being the target of potentially false sexual harassment claims stuck with him and provided an empathy for those who were prosecuted for crimes they did not commit. Judge Kavanaugh's fellow conservatives dissented. In Thompson, Judge Kavanugh, writing for the majority wrote that to demonstrate a favorable termination of a criminal prosecution for purposes of a malicious prosecution lawsuit under the Fourth Amendment, pursuant to 42 USC 1983, a plaintiff need not show that the criminal prosecution ended with some affirmative indication of innocence, to the contrary a plaintiff need only show that the prosecution ended without a conviction. To reach this conclusion, the Court analyzed the common law origins of the tort of malicious prosection, as it existed in 1871, and found that 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 and at common law, 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 Supreme Court looked to the common law from 1871 because In 1871, Congress passed and President Grant signed the Civil Rights Act of 1871, which later became 42 USC 1983. Section 1983 created a species of federal tort liability for individuals to sue state and local officers for deprivations of constitutional rights. In American courts as of 1871, the malicious prosecution tort generally allowed recovery against an individual who had initiated or caused the initiation of criminal proceedings despite having “no good reason to believe” that criminal charges were “justified by the facts and the law.” The no good reason element, has evolved into the lack of probable cause element. The Court relied upon a influential commentator from the time who characterized the favorable termination requirement as follows: "the reasonable rule seems to be, that the technical prerequisite is only that the particular prosecution be disposed of in such a manner that this cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one.” The Supreme Court expressly rejected the view of the Restatement of Torts, from 1976, which viewed the favorable termination element as  a criminal case terminates “in favor of the accused” when the prosecution ends in a way “as to indicate the innocence of the accused". Our New York City malicious prosecution lawyers believe that Judge Kavanaugh hit the nail on the head, when he found that it is consistent,   with “the values and purposes” of the Fourth Amendment  to recognize that whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed; and the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed. In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a §1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense.

Our New York City malicious prosecution lawyers and Westchester false arrest attorneys applaud this new ruling and the return to common sence by the United States Supreme Court. 

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The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

The Law Office of Michael H. Joseph, PLLC, has been helping injured victims recover compensation for their injuries for over a decade. Our attorneys are members of several prestigious organizations, including: 

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