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Justices Alito, Thomas and Gorsuch Concerned About ‘Chimera of a Constitutional Tort’ Created by Justice Kavanaugh and Majority in Malicious Prosecution Case

WASHINGTON, DC - MARCH 07: U.S. Supreme Court Associate Justice Samuel Alito testifies about the court's budget during a hearing of the House Appropriations Committee's Financial Services and General Government Subcommittee March 07, 2019 in Washington, DC. Members of the subcommittee asked the justices about court security, televising oral arguments and codes of ethics for the court. (Photo by Chip Somodevilla/Getty Images)

Justice Alito

A half an hour after the Supreme Court refused to take up any new cases and the justices declined to write on any matter relating to orders, the high court released a lone opinion Monday in a malicious prosecution case. SCOTUS held 6-3 in favor of petitioner Larry Thompson, a man who was was falsely accused of child sexual abuse before a case against him for obstructing an investigation and resisting arrest was suddenly dropped without an explanation.

Justice Brett Kavanaugh wrote the majority opinion, which was joined by everyone except Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch. Alito wrote the dissent, which Thomas and Gorsuch joined, and took to the classics section of his bookshelf to warn that the majority has created a “chimera of a constitutional tort.”

The case arrived at SCOTUS from the U.S. Court of Appeals for the Second Circuit. As the case syllabus notes, Second Circuit precedent “required Thompson to show that his criminal prosecution ended not merely without a conviction, but also with some affirmative indication of his innocence.” Since the case against Thompson was dismissed ahead of trial without a so-called “affirmative indication” of innocence by the prosecution or the judge, the Second Circuit found that Thompson’s malicious prosecution claim fell short.

When the Supreme Court granted certiorari in the case back in March 2021, the high court only decided to take up one of the petitioner’s two questions, namely:

I. Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” Laskar v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020), or that the proceeding “ended in a manner that affirmatively indicates his innocence,” Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018); see also Laskar, 972 F.3d at 1293 (acknowledging 7-1 circuit conflict).

Justices Kavanaugh, Stephen Breyer, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Chief Justice John Roberts all agreed that Thompson’s argument had won the day. In ruling in Thompson’s favor, the justices also resolved a circuit split between the Second Circuit and the U.S. Court of Appeals for the 11th Circuit.

“To maintain that Fourth Amendment claim under §1983, a plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution,” Kavanaugh set the stage. “This case requires us to flesh out what a favorable termination entails. Does it suffice for a plaintiff to show that his criminal prosecution ended without a conviction? Or must the plaintiff also demonstrate that the prosecution ended with some affirmative indication of his innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient?”

SCOTUS held Monday that a plaintiff such as Thompson only needs to show that a prosecution ended without a conviction in order to “demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under §1983 for malicious prosecution.”

In short, according to the majority, the fact of dismissal counts as a case “formally end[ing] in a manner not inconsistent with [Thompson’s] innocence.” The majority held that a “plaintiff need not show that the criminal prosecution ended with some affirmative indication of innocence,” and reversed the U.S. Court of Appeals for the Second Circuit’s judgment on the matter.

Justice Kavanaugh noticeably mentioned that the federal district court judge in this case had said that Second Circuit precedent “can and should be changed.”

Justice Alito et al. were not clearly not convinced, and referred to Homer’s The Iliad (notably, Robert Fagles‘ 1990 “preeminent” English translation) to ding the majority for creating something akin to the legal embodiment of a “mythical chimera” by giving the go-ahead to malicious prosecution claims under the Fourth Amendment. Given that Justices Thomas and Gorsuch joined the dissent in full, we can surmise that they were equally on board with Alito’s opening flourish:

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 analagous 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).

Justice Alito predicted that the Monday decision is “almost certain to lead to confusion” down the line.

“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,” the conservative justice said.

In closing, Alito suggested that the petitioner had other legal option at his disposal which should have been exhausted before SCOTUS took the step of “creating a new hybrid claim.”

“Instead of creating a new hybrid claim, we should simply hold that a malicious-prosecution claim may not be brought under the Fourth Amendment,” Alito said. “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.”

“Petitioner could have also sought relief under state law,” the dissenting justice added. “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.”

[Photo: Chip Somodevilla/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.