Marie Miller

Postal worker Larry Thompson did nothing wrong when he refused to let four police officers into his home without a warrant. Still, the officers tackled him to the floor, arrested him and put him in jail for refusing them entry.

Now, Thompson is trying to enforce his constitutional rights in a lawsuit against the officers. And his case, Thompson v. Clark, has made it all the way up to the U.S. Supreme Court. The justices will hear the case this fall.

In deciding Thompson's case, the court should not let the officers get off scot-free for violating the law they swore to uphold.

It all began one winter night in January 2014. Thompson, a Navy veteran, was at home with his wife and infant daughter, getting ready for bed.

That's when four New York Police Department officers knocked on the door and demanded entry into the home to examine Thompson's daughter.

They were responding to a call from Thompson's sister-in-law, who has cognitive delays and was being cared for by Thompson and his wife.

Unbeknownst to the couple, she called 911 because she saw a diaper rash and heard the baby cry when Thompson changed her diaper — innocuous facts that she mistook as signs of abuse. The baby had received a clean bill of health at the doctor that day and was safe in her mother's arms on the couch that evening.

Thompson — confused about why the officers were investigating him — asked if the officers had a warrant. They did not, nor did they call a judge to obtain one. Instead, the officers tackled Thompson in the doorway, handcuffed him, entered the home and examined the baby.

They found nothing but a diaper rash.

The officers then put Thompson in jail for two days, and a prosecutor charged him with resisting arrest and obstructing governmental administration, all because Thompson refused the officers warrantless entry into his home and, Thompson asserts, the prosecutor relied on an officer's false statements about what happened.

It took another three months of Thompson insisting that he did nothing wrong before the prosecutor dismissed the charges.

Thompson then sued the officers for violating his rights under the Fourth Amendment of the U.S. Constitution. Like most such lawsuits, Thompson filed his case under the federal civil rights statute, Title 42 of the U.S. Code, Section 1983, which for 150 years has provided a remedy for those whose constitutional rights have been violated by state and local officials.

But Thompson quickly ran into a problem with his claim that one of the officers unreasonably seized him using the legal process.

Thompson's case fell under the jurisdiction of the U.S. Court of Appeals for the Second Circuit, which has a rule for claims (like Thompson's) that an officer unreasonably seized a person using the legal process: The claimant must first show that the criminal proceeding brought against him ended in a way that "affirmatively indicate[s] innocence."[1]

The Second Circuit shares this rule with six other circuits — the U.S. Courts of Appeals for the First, Third, Fourth, Sixth, Ninth and Tenth Circuits.

But the rule has a less-than-solid foundation. It comes not from the text, purpose or history of Section 1983 nor the Fourth Amendment.

Instead, it comes almost exclusively from a stray comment in the Restatement of the Law Second, Torts, a treatise published by the independent American Law Institute.[2] Reliance on that stray comment is curious and wrong.

The Supreme Court has repeatedly instructed courts to determine the prerequisites of a Section 1983 claim by first "look[ing] to 'common-law principles that were well settled'" in 1871, when the U.S. Congress enacted Section 1 of the Ku Klux Klan Act, which eventually became Section 1983.[3]

That's because Congress adopts statutes against the backdrop of prevailing common-law principles, and­ we presume that Congress "intended these common-law principles to obtain, absent specific provisions to the contrary," as the Supreme Court explained in its 1981 decision in City of Newport v. Fact Concerts Inc.[4]

The treatise simply does not reflect common law principles that prevailed in 1871; it aims to reflect contemporary tort principles based on recent developments in the law.

In fact, most states in 1871 did not have an indications-of-innocence rule like the Second Circuit's. Indeed, only one state — Rhode Island — did.

Still, because the Second Circuit required Thompson to show that the charges against him were dismissed due to his innocence, he could not proceed with his claim — the record of his criminal proceedings did not reveal why the prosecutor chose to drop the charges.

Ultimately, the Second Circuit's rule is nothing but a shield for government officials who have violated constitutional rights. The Supreme Court should reject it for four main reasons.

First, the rule flips the principle of innocent until proven guilty on its head. In America, only a conviction overrides the presumption of innocence. Accordingly, records of criminal prosecutions rarely include affirmations that a person is innocent; it simply isn't a part of our criminal justice system.

Second, the circuit court's rule incentivizes prosecutors to charge people with crimes they did not commit to shield officers from liability for violating those people's rights. By charging the person with a crime and then dismissing the charge, prosecutors can effectively bar the courthouse doors to those whose constitutional rights have been violated.

Third, the Second Circuit's rule creates a host of problems for lower courts. For example, how can the record of a criminal prosecution show that a person is innocent? How strong does the evidence of innocence have to be? And how are courts supposed to decide these questions?

Without a basis in the civil rights statute's text or its historical background, the Second Circuit's rule invites lower courts to improvise decisions about whether constitutional rights can be enforced. That's a recipe for inconsistent rules across the country and uncertainty in the rule of law generally.

Finally, the Second Circuit's rule defeats the very purpose of the civil rights statute, which is to deter state officials from using their badges to deprive people of their federal constitutional rights and to give relief to victims when their rights are violated. Thompson's case is a prime example. Under the Second Circuit's rule, he has no way to obtain relief for the officer's violation of his Fourth Amendment rights.

The good news is that there is a better way to handle civil rights claims such as these: Allow a litigant like Thompson to bring his claims as long as the prosecution did not establish his guilt.

As my organization, the Institute for Justice, explains in a friend-of-the-court brief, this position — which has already been adopted by the U.S. Court of Appeals for the Eleventh Circuit — is the only one that honors the civil rights statute's purpose and history. After all, the officer's unlawful conduct toward Thompson is precisely the kind of government action that the civil rights statute was designed to prevent and remedy.

More than 200 years ago, the Supreme Court declared in Marbury v. Madison that "if the laws furnish no remedy for the violation of a vested legal right," then our government will no longer deserve the "high appellation" that is "a government of laws, and not of men."[5] Yet that is precisely what the Second Circuit's decision does.

The Supreme Court should reverse that decision and make clear that no government official is above the law.

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Marie Miller is an attorney at the Institute for Justice.

Disclosure: The Institute for Justice filed an amicus brief in support of Thompson in Thompson v. Clark.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.  

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Lanning v. City of Glens Falls , 908 F.3d 19, 28 (2d Cir. 2018).

[2] Restatement (Second) of Torts, §660, cmt. a (Am. Law Inst. 1977).

[3] Nieves v. Bartlett , 139 S. Ct. 1715, 1726 (2019).

[4] Briscoe v. LaHue , 460 U.S. 325, 330 (1983).

[5] Marbury v. Madison , 5 U.S. 137, 163 (1803).