Amir H. Ali, an attorney with the MacArthur Justice Center who is representing the former defendant, Larry Thompson, asked the justices to reverse a Second Circuit decision and squarely reject a doctrine making a show of innocence a requirement in a malicious prosecution suit brought in federal court.
"The Second Circuit said a criminal proceeding terminates in the accused's favor only if it affirmatively indicates that the accused is innocent. That is wrong," Ali told the justices.
Instead, the high court should adopt a lower standard, Ali said: that an underlying criminal case ended without a conviction or an admission of guilt by the defendant.
But the lines of inquiry by some justices suggested a reluctance to define a favorable termination standard for malicious prosecution claims, which adopt elements of state law, something the high court has never done before.
Justice Samuel Alito was not convinced favorable termination should be required in a Fourth Amendment claim in the first place, as the amendment doesn't mention any such requirement, he said. Ali argued if the high court doesn't adopt a standard for favorable termination, courts will simply adopt the Second Circuit rule.
Justice Neil Gorsuch went further, signaling skepticism that Fourth Amendment could be invoked in claim of malicious prosecution, a state law tort that arises from events following a defendant's criminal court arraignment.
"This Court has never recognized a malicious prosecution claim under the Fourth Amendment," Justice Gorsuch said. "Isn't it time that we answer that before we decide what the elements of that claim should look like?"
Arguing on behalf of the police officers, Assistant Corporation Counsel John D. Moore of the Law Department of the City of New York seized on that doubt, arguing Thompson's malicious prosecution claim did not have a valid Fourth Amendment ground, pointing to the lack of precedent in the Supreme Court.
Ali told the court that was beyond the scope of the Thompson case. Instead, he said, the court should issue a brief decision, "three sentences — two if you like semicolons," to adopt a favorable termination standard that only requires the absence of a conviction or a self-incriminating statement.
Thompson, a former U.S. Navy veteran living in Brooklyn, New York, sued the New York Police Department officers who entered his house without a warrant and arrested him in 2014 after his sister-law called 911 — it was later found that she was mentally ill.
Thompson was charged with obstructing governmental administration and resisting arrest, but prosecutors dropped the charges "in the interest of justice" months later.
In December the same year, Thompson sued the cops for allegedly violating his Fourth Amendment rights against unlawful search and seizure. In his suit, Thompson alleged malicious prosecution and a host of other claims, including unlawful entry, false arrest and fabricated evidence.
U.S. District Judge Jack. B. Weinstein for the Eastern District of New York ruled Thompson didn't have standing to sue the officers for malicious prosecution under Section 1983 of Title 42 of the U.S. Code, which gives individuals the right to sue state government employees for damages over civil rights violations.
Judge Weinstein reluctantly applied a rule the Second Circuit adopted in 2018 in Lanning v. Glens Falls holding that malicious prosecution claims require "affirmative indications of innocence to establish favorable termination." Thompson's other claims were allowed to go to trial, but a jury ultimately found the officers not liable.
On appeal, the Second Circuit affirmed Judge Weinstein's decision, paving the way for a petition with the U.S. Supreme Court.
The high court has cemented the existence of a favorable termination requirement in a pivotal decision.
In 1994, in Heck v. Humphrey, the court held that a defendant cannot bring a lawsuit under Section 1983 until there has been a "termination of the prior criminal proceeding in [the individual's] favor."
Ever since, a deep rift emerged among courts of appeals on what amounts to a favorable termination in the context of a malicious prosecution claim.
Seven circuits, including the Second Circuit, have adopted a stringent requirement, saying malicious prosecution plaintiffs must show an affirmation of innocence in their underlying cases.
The show of innocence requirement effectively prevents defendants whose cases were simply dismissed — either for lack of evidence, procedural issues, or because witnesses in their cases refused to testify — to bring suits against their arresting officers.
Some criminal defense and civil rights attorneys, along with a host of public interest groups that have filed amicus briefs in the Thompson case, criticized the standard saying it gives prosecutors, who often dismiss cases with little or no explanation, as in Thompson case, too much power in sinking potential lawsuits against police officers.
Another major critique is that a show of innocence is a rare occurrence in a justice system that focuses on proving a defendant guilty beyond a reasonable doubt.
At the other end of the spectrum, the Eleventh Circuit held in August 2020 that the favorable termination threshold is met when former defendants show their criminal cases resolved "in a manner not inconsistent with" their innocence. Critics of this approach, most notably prosecutors from all over country, argue that if adopted by the Supreme Court it would open the door for meritless litigation coming from former criminal defendants.
Ali urged the court to adopt the Eleventh Circuit rule.
"We think the court should adopt common sense that the criminal proceeding terminates in favor of the prosecution when it gets the conviction that it sought. A criminal proceeding terminates in favor of the accused when it doesn't," he said.
Also arguing on behalf of Thompson, Jonathan Y. Ellis of the U.S. Solicitor General's Office told the court the adoption of a favorable termination standard was necessary to avoid interference between parallel proceedings between criminal and civil courts, and to avoid inconsistent judgments.
"Incorporating a favorable termination element would well serve those purposes, and in the government's view, the court of appeals was right to require petitioner to show that the criminal proceeding against him terminated in his favor," Ellis told the justices. "The court erred, however, in requiring that that termination itself indicate innocence."
Moore told the justices the Second Circuit was correct in applying the favorable termination strict requirement, and urged them to make it the standard for the whole country.
"Modern courts, considering current law enforcement practices, have increasingly adopted the indications-of-innocence standard, and we believe that this Court should do so as well to the extent that it recognizes a malicious prosecution claim at all," Moore said.
Ali did not respond to a request for comment Tuesday afternoon. The Law Department declined to comment on the case.
Thompson is represented by Amir H. Ali of the Roderick & Solange MacArthur Justice Center and Jonathan Y. Ellis of the U.S. Solicitor General's Office.
The NYPD officers are represented by Assistant Corporation Counsel John David Moore of the Law Department of the City of New York.
The case is Thompson v. Clark, case number 20-659, in the Supreme Court of the United States.
--Editing by Amy Rowe.
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