SUPREME COURT OF THE UNITED STATES
_________________
No. 20–659
_________________
LARRY THOMPSON, PETITIONER
v. PAGIEL
CLARK, et al.
on writ of certiorari to the united states
court of appeals for the second circuit
[April 4, 2022]
Justice Alito, with whom Justice Thomas and
Justice Gorsuch join, dissenting.
Homer described the mythical chimera as a “grim
monster” made of “all lion in front, all snake behind, all goat
between.” The Iliad p. 201 (R. Fagles trans. 1990). Today, the
Court creates a chimera of a constitutional tort by stitching
together elements taken from two very different claims: a Fourth
Amendment unreasonable seizure claim and a common-law
malicious-prosecution claim.
The Court justifies this creation on the ground
that malicious prosecution is the common-law tort that is most
analogous to an unreasonable seizure claim. And because a
common-law malicious-prosecution claim demanded proof of a
favorable termination, the Court holds that its new creation
includes that element. But this Court has never held that the
Fourth Amendment houses a malicious-prosecution claim, and the
Court defends its analogy with just two sentences of independent
analysis and a reference to a body of lower court cases.
I cannot agree with that approach. The Court’s
independent analysis of this important question is far too cursory,
and its reliance on lower court cases is particularly ill-advised
here because that body of case law appears to have been heavily
influenced by a mistaken reading of the plurality opinion in
Albright v.
Oliver,
510
U.S. 266 (1994).
What the Court has done is to recognize a novel
hybrid claim of uncertain scope that has no basis in the
Constitution and is almost certain to lead to confusion.
I
The Court asserts that malicious prosecution
is the common-law tort that is most analogous to petitioner’s
Fourth Amendment claim,
ante, at 5, but in fact the Fourth
Amendment and malicious prosecution have almost nothing in
common.
A
The Fourth Amendment prohibits “unreasonable
searches and seizures.” And a Fourth Amendment claim based on an
unreasonable seizure has two indispensable elements: (i) there must
have been a “seizure,”
i.e., an arrest or some other use of
“ ‘physical force’ or a ‘show of authority’ that ‘in some way
restrain[s] the liberty’ of [a] person,”
Torres v.
Madrid, 592 U. S. ___, ___ (2021) (slip op., at 3), and
(ii) the seizure must have been “unreasonable,” which means, in the
case of a full-blown arrest, that the officers making the arrest
must have lacked probable cause.
District of Columbia v.
Wesby, 583 U. S. ___, ___ (2018) (slip op., at 7).
Malicious prosecution, on the other hand,
requires proof that “(i) the suit or proceeding was ‘instituted
without any probable cause;’ (ii) the ‘motive in instituting’ the
suit ‘was malicious . . . ; and (iii) the prosecution
‘terminated in the acquittal or discharge of the accused.’ ”
Ante, at 6 (quoting T. Cooley, Law of Torts 180 (1880)
(Cooley)); see also
Manuel v.
Joliet, 580 U.S. 357,
378 (2017) (Alito, J., dissenting).
A comparison of the elements of the
malicious-prosecution tort with the elements of a Fourth Amendment
unreasonable-seizure claim shows that there is no overlap. That is,
a plaintiff suing for unreasonable seizure need not prove any of
the elements of common-law malicious prosecution, and a plaintiff
suing for common-law malicious prosecution need not prove any of
the elements required to establish an unreasonable seizure.
Start with the elements of an
unreasonable-seizure claim. Such a claim does not require proof
that there was a “prosecution”—
i.e., a criminal proceeding
that is initiated by the filing of charges in the form of a
criminal complaint, information, or indictment—while a
malicious-prosecution claim obviously requires a prosecution. See,
e.g., 1 F. Hilliard, The Law of Torts or Private Wrongs §2,
pp. 413–414 (1866) (Hilliard) (“The general principle is laid down,
that an action lies for maliciously causing one
to be
indicted, whereby he is damnified, either in person,
reputation, or property” (emphasis added)); Cooley 180 (“[I]t is a
duty which every man owes to every other not to
institute
proceedings maliciously, which he has no good reason to believe
are justified by the facts and the law” (emphasis added)); M.
Newell, Law of Malicious Prosecution, False Imprisonment, and Abuse
of Process §1, p. 3 (1892) (Newell) (same); see also W. Prosser,
Law of Torts 860 (1941) (“The interest in freedom from
unjustifiable
litigation is protected by an action for
malicious prosecution” (boldface deleted and emphasis added)). A
person who is arrested without probable cause may have a viable
unreasonable-seizure claim even if he or she is released before any
charges are filed.
An unreasonable-seizure claim also does not
require “malice.” The Court has “almost uniformly rejected
invitations to probe subjective intent” in Fourth Amendment cases.
Ashcroft v.
al-Kidd,
563 U.S.
731, 737 (2011). If a law enforcement officer makes an arrest
without probable cause, the arrest is unreasonable and
therefore unconstitutional even if the officer harbors no ill will
for the arrestee. Likewise, if an officer makes an arrest
with probable cause, there is no Fourth Amendment violation
regardless of the “actual motivations of the individual officers
involved.”
Whren v.
United States,
517 U.S.
806, 813 (1996); see also
Cordova v.
Albuquerque,
816 F.3d 645, 664 (CA10 2016) (Gorsuch, J., concurring in
judgment).
Finally, the validity of an unreasonable-seizure
claim is not dependent on the outcome of any prosecution that
happens to follow a seizure. A person who is arrested without
probable cause but then convicted based on evidence discovered
after the arrest is not barred from recovering simply because he or
she cannot show a favorable termination to the proceeding. See
Wallace v.
Kato,
549 U.S.
384, 389–392 (2007); cf.
Heck v.
Humphrey,
512 U.S.
477, 487, n. 7 (1994) (a person may bring “a suit for
damages attributable to an allegedly unreasonable search” even if
he or she was convicted). Thus, an unreasonable-seizure claim may
be shown without proving any of the elements of a common-law
malicious-prosecution claim.
Turning now to the elements of malicious
prosecution, we see that all of those may be established without
proving either of the two elements that the constitutional text and
our precedents require in order to establish an unreasonable
seizure.
First, the tort of malicious prosecution does
not require a seizure within the meaning of the Fourth Amendment.
There are cases in which defendants charged with non- violent
crimes agree to appear for arraignment and are then released
pending trial on their own recognizance. These defendants are
prosecuted, and they may bring a common-law suit for malicious
prosecution if the other elements of that tort can be shown, but
they are not seized. See,
e.g., 1 Hilliard §1, at 412
(noting that malicious prosecution may involve “injury to the
person, as connected with false imprisonment,” but is “primarily
. . . a wrong to
character or
reputation”);
3 D. Dobbs, The Law of Torts §586, p. 388 (2011) (the “prosecution
does not necessarily involve any detention of the plaintiff at
all”). The term seizure would have to be given a novel and
extravagant interpretation in order to reach a “defendant awaiting
trial on his own recognizance” or one who simply receives a
“summons to appear at trial.”
Cordova, 816 F. 3d, at
663 (opinion of Gorsuch, J.).
Second, since a malicious-prosecution claim does
not require a seizure, it obviously does not require proof that the
person bringing suit was seized without probable cause. The claim
does demand proof that the person bringing suit was
prosecuted without probable cause, but probable cause at the
time of arrest is a different question from probable cause at the
time at which a prosecution is initiated.
In light of the differences between these two
claims, it is apparent that a Fourth Amendment unreasonable-seizure
claim is not analogous to a claim for malicious prosecution. Much
more analogous are the common-law torts of false arrest and false
imprisonment, which protect against “[e]very confinement of the
person,” including one effected by “forcibly detaining [someone] in
the public streets.”
Wallace, 549 U. S., at 388–389
(internal quotation marks omitted); see also Dobbs, Law of Torts
§41 (describing elements of false imprisonment and false arrest);
Restatement (Second) of Torts §35 (1964) (same).
B
The Court does not make a serious effort to
justify its analogy between unreasonable seizure and malicious
prosecution. Instead, the Court largely relies on the fact that
“most of the Courts of Appeals to consider the question” have drawn
that analogy,
ante, at 6, but the Court ignores contrary
lower court authority. See,
e.g.,
Manuel v.
Joliet, 903 F.3d 667, 670 (CA7 2018);
Jones v.
Clark County, 959 F.3d 748, 776–777 (CA6 2020) (Murphy, J.,
concurring in part);
Pagan-Gonzalez v.
Moreno, 919
F.3d 582, 608–617 (CA1 2019) (Barron, J., concurring). But in any
event, we should not decide this important question without
independent analysis, and the Court’s own cursory analysis is
erroneous.
The Court claims that the “gravamen” of
petitioner’s Fourth Amendment claim is the same as that of a
malicious-prosecution claim: the “wrongful initiation of charges
without probable cause.”
Ante, at 6. But what the Court
describes is not a Fourth Amendment violation at all. As explained,
that Amendment protects against “unreasonable searches and
seizures”—not the unreasonable “initiation of charges.” In fact,
“the specific provisions of the Bill of Rights neither impose a
standard for the initiation of a prosecution” nor “require a
pretrial hearing to weigh evidence according to a given standard.”
Albright, 510 U. S., at 282 (Kennedy, J., concurring in
judgment); see also 4 W. LaFave, J. Israel, N. King, & O. Kerr,
Criminal Procedure §14.2(a), pp. 329, 331 (4th ed. 2015) (noting
that the Constitution does not require “screening” of the decision
to prosecute “by some neutral body” to ensure “some minimal
evidence supporting the charge,” and “the sole constitutional
protection” is “what the Fourth Amendment requires to justify
physical restraints”).
The Court also says that the initiation of
charges must be “wrongful,” but it is not clear what that means. If
that term simply refers to the lack of probable cause, then the
Court has failed to capture the “gravamen” of malicious prosecution
because that tort requires not just that the defendant initiated
charges “without probable cause” but also—as the name of the tort
suggests—that this was done with “malice.” See 1 Hilliard §4, at
416 (“want of probable cause” is not enough “without malice”); 1
Newell §6, at 7 (“The plaintiff must show that the defendant acted
from
malicious motives in prosecuting him”). Cf.
ante, at 6, n. 5 (claiming to reserve the question whether
the claim requires malice).
If, on the other hand, the Court uses the term
“wrongful” to require “malice,” then the claim it has endorsed is
even more incompatible with the Fourth Amendment, which almost
always imposes a purely objective standard. See
supra, at
4.
II
The Court’s recognition of a Fourth Amendment
malicious-prosecution claim has no basis in our precedents.
A
The Court relies on certain lower court
decisions that accepted the strange concept of a Fourth Amendment
malicious-prosecution claim, but that line of cases developed in
large part because of a misunderstanding of the tersely worded
plurality opinion in
Albright,
510
U.S. 266. See
Hernandez-Cuevas v.
Taylor, 723
F.3d 91, 99 (CA1 2013) (noting that “dicta” in
Albright led
many jurisdictions to “recogniz[e] a Fourth Amendment malicious
prosecution claim”). Instead of simply accepting that misreading,
we should explain what
Albright actually decided and what
the plurality said.
In that case, Kevin Albright was arrested and
bound over for trial without probable cause. The prosecution was
dismissed before trial, and Albright then sued under 42
U. S. C. §1983. The District Court dismissed his suit;
the Court of Appeals affirmed the dismissal; and when the case was
argued in this Court, the only claim that Albright pressed was that
his prosecution without probable cause violated substantive due
process. 510 U. S., at 268 (plurality opinion). He did not
advance either a Fourth Amendment claim or a malicious-prosecution
claim.
This Court affirmed the dismissal of Albright’s
substantive due process claim, and while no opinion gained majority
approval, both the four Justices who joined the plurality opinion
and the three justices who concurred in the judgment agreed that
substantive due process does not include the right to be free from
prosecution without probable cause.
Id., at 268, 275
(plurality opinion);
id., at 282 (opinion of Kennedy, J.);
id., at 286 (Souter, J., concurring in judgment). That is
all that
Albright actually decided.
The terse plurality opinion did make comments
about the Fourth Amendment and malicious prosecution, and those
comments have led to confusion in the lower courts. But a careful
reading of the plurality opinion shows that it in no way suggested
that the Fourth Amendment protects against malicious
prosecution.
When the plurality commented on the Fourth
Amendment, it was addressing Albright’s
prosecution-without-probable-cause claim, not malicious
prosecution. And in connection with the
prosecution-without-probable-cause claim, the plurality made the
following two points. First, the plurality noted that “[w]here a
particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government
behavior, ‘that Amendment, not the more generalized notion of
“substantive due process,” must be the guide for analyzing [the]
claims.’ ”
Id., at 273. Second, the plurality observed
that the Fourth Amendment is the constitutional provision that
deals with “pretrial deprivations of liberty.”
Id., at
274.
What this discussion suggested was that
if any provision of the Constitution provided a home for
Albright’s prosecution-without-probable-cause claim, the Fourth
Amendment was a better bet than the Fourteenth Amendment’s Due
Process Clause. But the plurality did not conclude or even suggest
that a prosecution-without-probable-cause claim could be brought
under the Fourth Amendment. See
id., at 274–275 (expressly
declining to express a view on the question). Indeed, the plurality
expressly reiterated that “the accused is not ‘entitled to judicial
oversight or review of the decision to prosecute,’ ” suggesting
instead that the harm to Albright—if any—was that he was “not
merely charged” but also “submitted himself to arrest.”
Id.,
at 274 (quoting
Gerstein v.
Pugh,
420 U.S.
103, 114 (1975)).
As for malicious prosecution, the plurality did
not even hint that such a claim could be brought under the Fourth
Amendment. The plurality’s only two references to malicious
prosecution appeared in the portion of the opinion that set out
what had occurred in the lower courts. Footnote 3 recounted that
Albright’s complaint contained a common-law malicious-prosecution
claim but that this claim had been dismissed without prejudice and
that this issue was not before the Court. 510 U. S., at 269,
n. 3. Footnote 4 then observed that there was an
“ ‘embarrassing diversity of judicial opinion’ ” in the
lower courts as to whether a malicious-prosecution claim was
actionable under §1983, and the footnote added that substantive due
process did not “furnish the constitutional peg on which to hang
such a ‘tort.’ ”
Id., at 270–271, n. 4. But the
plurality opinion did not suggest that the Fourth Amendment could
provide such a “peg,” and neither did any other Justice who
concurred in the judgment.[
1]*
B
Manuel v.
Joliet, 580 U.S. 357,
also provides no support for a Fourth Amendment
malicious-prosecution claim. There, petitioner Elijah Manuel
brought suit under the Fourth Amendment, alleging that he was
arrested without probable cause and then held for seven weeks
without probable cause after a judge ordered him detained.
Id., at 359–360. The Court reasoned that the Fourth
Amendment prohibits “government officials from detaining a person
in the absence of probable cause.”
Id., at 367. A violation
of that prohibition, the Court continued, may occur both “before
the formal onset of a criminal proceeding” and “when legal process
itself goes wrong—when, for example, a judge’s probable-cause
determination is predicated solely on a police officer’s false
statements.”
Ibid. Accordingly, the Court concluded that the
plaintiff in that case could state a Fourth Amendment claim because
the “judge’s order holding [him] for trial” was not supported by
probable cause.
Id., at 368.
Although the majority asserts that
Manuel
authorized Fourth Amendment malicious-prosecution claims, see
ante, at 4,
Manuel did no such thing. That decision
expressly declined to determine “whether (and, if so, how)
[petitioner’s Fourth Amendment claim] should resemble the malicious
prosecution tort.”
Id., at 372, n. 10. Indeed, the
majority’s analysis here is incompatible with the analysis in
Manuel, where the gravamen of the wrong was that petitioner
was “detain[ed] . . . in the absence of probable cause.”
Id., at 367.
Manuel thus provides no support for the
Court’s suggestion that the Fourth Amendment prohibits the
“initiation of charges without probable cause.”
Ante, at
6.
III
Instead of clarifying the law regarding §1983
malicious-prosecution claims, today’s decision, I fear, will sow
more confusion. The Court endorses a Fourth Amendment claim for
malicious prosecution that appears to have the following elements:
(1) the defendant “initiat[ed]” charges against the plaintiff in a
way that was “wrongful” and “without probable cause,” (2) the
“malicious prosecution resulted in a seizure of the plaintiff,” and
(3) the prosecution must not have ended in conviction.
Ante,
at 5–6, and n. 2. This tort has no precedent in Fourth Amendment
law. It is markedly different from the common-law tort of malicious
prosecution, and its dimensions are uncertain.
First, it is not clear why this tort requires
both a seizure and a prosecution. As noted, the two do not always
go together, and if the aim is to permit the victims of malicious
prosecution to sue under §1983, it is not clear why detention
should be required. While pretrial detention certainly increases
the harm inflicted by a malicious prosecution, such a prosecution
can be very damaging even if the victim is never detained. See,
e.g., M. Bigelow, The Law of Torts 204 (1875) (a plaintiff
may show damage to “his person by imprisonment, his reputation by
the scandal, or . . . his property by the expense”). The
majority’s only answer to the question why the claim requires a
seizure is that it is “housed in the Fourth Amendment,”
ante, at 5, n. 2, but that response begs the antecedent
question whether the Fourth Amendment houses a
malicious-prosecution suit at all.
Second, where the person bringing suit under
§1983 is arrested and then prosecuted, it is not clear whether both
the arrest and the prosecution must have been done without probable
cause and without a legitimate law enforcement purpose. An arrest
made without probable cause may be followed by a prosecution based
on new evidence that clearly establishes probable cause. And by the
same token, the evidence that establishes probable cause at the
time of arrest may be thoroughly discredited at some point well
before the termination of a prosecution.
Third and most important, it is not clear what
the Court means when it says that the “gravamen” of the claim is
“wrongful initiation of charges without probable
cause
.”
Ante, at 6. Since the Court refers repeatedly
to “malicious prosecution,” one might think that this requires a
guilty mental state, but in a footnote, the Court raises the
possibility that the constitutional tort it recognizes may require
nothing more than the absence of probable cause. See
ibid.,
n. 3.
If that turns out to be so, it is hard to see
even the slightest connection between the Court’s new tort and
common-law malicious prosecution. Malice is the hallmark of a
malicious-prosecution claim. Even if a prosecution is brought and
maintained without probable cause, a malicious-prosecution claim
cannot succeed without proof of malice. See
supra, at
6
. And if the Court’s new tort has nothing to do with
malicious prosecution, what possible reason can there be for
borrowing that tort’s favorable-termination element?
IV
Instead of creating a new hybrid claim, we
should simply hold that a malicious-prosecution claim may not be
brought under the Fourth Amendment. Such a holding would not leave
a person in petitioner’s situation without legal protection.
Petitioner brought Fourth Amendment claims against respondents for
false arrest, excessive force, and unlawful entry, but after trial
a jury ruled against him on all those claims. See App. 142–146.
Petitioner could have also sought relief under state law. See,
e.g., Cordova, 816 F. 3d, at 662 (opinion of
Gorsuch, J.). New York law appears to recognize a
malicious-prosecution tort with an element very much like the
favorable-termination element that the Court adopts today, see
Lanning v.
Glens Falls, 908 F.3d 19, 24–25 (CA2
2018), but petitioner chose not to bring such a claim. See Tr. of
Oral Arg. 40–41.
For these reasons, I would affirm the judgment
below, and I therefore respectfully dissent.
Comments
Be the first to comment
Leave a Comment