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Kenya Law / Blog / Case Summary: A Fourth Amendment claim under 42 U.S.C. of 1983 for malicious prosecution required the plaintiff to only show that the criminal prosecution ended without a conviction

A Fourth Amendment claim under 42 U.S.C. of 1983 for malicious prosecution required the plaintiff to only show that the criminal prosecution ended without a conviction

LT v Pagiel Clark et al.

No. 20–659

Supreme Court of the United States

Roberts, CJ & SCJ; Kavanaugh, Breyer, Sotomayor, Kagan, Barrett, Alito, Thomas and Gorsuch, SCJJ

April 4, 2022

Reported by Faith Wanjiku and Bonface Nyamweya

Download the Decision

Constitutional Law-arrest-arrest without warrant-where the plaintiff was arrested without being issued a warrant of arrest-whether the police were justified to arrest and detain the plaintiff for two days and discharge him before trial without explanation from the prosecutor or the judge- whether there were constitutional violations arising from the arrest, detainment and discharge without explanation from the prosecutor or judge-Civil Rights Act of 1871 (42 U.S.C. § 1983).

Constitutional Law-Bill of Rights-right to a fair trial- dismissal of charges- where the plaintiff’s charges were dismissed before trial without any explanation by the prosecutor or judge- whether the dismissal of charges without explanation amounted to constitutional violations, including a Fourth Amendment claim for malicious prosecution- when did a prosecution in a trial come to an end- what was needed of the plaintiff to demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim that provided for malicious prosecution- whether the petitioner merited the Fourth Amendment claim of 1983 that provided for malicious prosecution since he was arrested, detained, and discharged before trial without any explanation from the prosecutor or the judge- Civil Rights Act of 1871 (42 U.S.C. § 1983).

Brief facts: The petitioner was living with his fiancée and their newborn baby in an apartment in Brooklyn, New York. The petitioner’s sister-in-law, who apparently suffered from a mental illness, called 911 to report that the petitioner was sexually abusing the baby. When the Emergency Medical Technicians arrived, the petitioner denied that anyone had called 911. When the Emergency Medical Technicians returned with four police officers, the petitioner told them that they could not enter without a warrant.

The police nonetheless entered and handcuffed the petitioner. The Emergency Medical Technicians took the baby to the hospital where medical professionals examined her and found no signs of abuse. Meanwhile, the petitioner was arrested and charged with obstructing governmental administration and resisting arrest. The petitioner was detained for two days before being released. The charges against the petitioner were dismissed before trial, without any explanation by the prosecutor or the judge. After the dismissal, the petitioner filed a suit under 42 U.S.C. of 1983, alleging several constitutional violations, including a Fourth Amendment claim for malicious prosecution. Issues:

  1. What was needed of the plaintiff to demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim on malicious prosecution?
  2. Whether the petitioner merited the Fourth Amendment claim of 1983 that provided for malicious prosecution since he was arrested, detained, and discharged before trial without any explanation from the prosecutor or the judge.
  3. Whether there were other constitutional violations arising from the arrest, detainment and discharge without explanation from the prosecutor or judge.
  4. When did a prosecution in a trial come to an end?

Relevant provisions of the law

Civil Rights Act of 1871 (42 U.S.C. § 1983)

Section 1

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Held by majority

  1. The plaintiff had to demonstrate, among other things, that he obtained a favourable termination of the underlying criminal prosecution. The case required the Supreme Court to flesh out what a favourable termination entailed, hence establish whether it sufficed for the plaintiff to show that his criminal prosecution ended without a conviction, or whether the plaintiff had to demonstrate as well that the prosecution ended with some affirmative indication of his innocence like an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient.
  2. Section 1 of the Civil Rights Act of 1871 created a species of federal tort liability for individuals to sue the state and local officers for deprivations of constitutional rights. The plaintiff sued several police officers under the Civil Rights Act of 1871 whereby he brought a Fourth Amendment claim under 42 U.S.C. of 1983 for malicious prosecution.
  3. The narrow dispute in that case concerned one element of the Fourth Amendment claim under the Civil Rights Act for malicious prosecution. To determine the elements of a constitutional claim under the Civil Rights Act, the Supreme Court’s practice was to first look to the elements of the most analogous tort as of 1871 when 42 U.S.C. was enacted, so long as doing so was consistent with the values and purposes of the constitutional right at issue. The reason for that was that the gravamen of the Fourth Amendment claim for malicious prosecution, as the court had recognized it, was the wrongful initiation of charges without probable cause. And the wrongful initiation of charges without probable cause was likewise the gravamen of the tort of malicious prosecution.
  4. 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 malicious prosecution tort protected against injury to the person, as connected with false imprisonment and against a wrong to character or reputation. American courts described the elements of the malicious prosecution tort as follows:
    1. the suit or proceeding was instituted without any probable cause;
    2. the motive in instituting the suit was malicious, which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice; and
    3. the prosecution terminated in the acquittal or discharge of the accused.
  5. The third requirement—a favorable termination of the underlying criminal prosecution—was the focus of the parties’ dispute in that case. In accord with the elements of the malicious prosecution tort, a Fourth Amendment claim under 42 U.S.C. of 1983 for malicious prosecution required the plaintiff to show a favorable termination of the underlying criminal case against him. The favorable termination requirement served multiple purposes:
    1. it avoided parallel litigation in civil and criminal proceedings over the issues of probable cause and guilt;
    2. it precluded inconsistent civil and criminal judgments where a claimant could succeed in the tort action after having been convicted in the criminal case; and
    3. it prevented civil suits from being improperly used as collateral attacks on criminal proceedings.
  6. The parties to that case disagreed about what a favorable termination entailed. In particular, whether it sufficed for a plaintiff to show that his prosecution ended without a conviction, or whether the plaintiff had also to show that his prosecution ended with some affirmative indication of innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient.
  7. To resolve that disagreement, the Supreme Court had to look to American malicious prosecution tort law as of 1871. In most American courts that had considered the question as of 1871, the favorable termination element of a malicious prosecution claim was satisfied so long as the prosecution ended without a conviction. When the individual was convicted in the suit or proceeding complained of, he could not maintain an action for malicious prosecution. But when the individual was not convicted, the question was, whether the prosecution instituted by the defendant could be said to have been terminated and disposed of.
  8. The technical prerequisite was only that the particular prosecution be disposed of in such a manner that it could not be revived. On that point, American courts as of 1871 were largely in agreement. For that reason, 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. Moreover, a favorable termination did not require an acquittal or a dismissal accompanied by some affirmative indication of innocence. On the contrary, a person could have his action after a bill rejected by the grand jury, or even where no bill had been preferred, if there was a final end of the prosecution, and the party discharged.
  9. The parties to the case had identified only one court that required something more, such as an acquittal or a dismissal accompanied by some affirmative indication of innocence. The clear majority of American courts did not limit favorable terminations to those that suggested the accused’s innocence. Against that body of precedent and historical practice, the respondent contended that American courts as of 1871 had not settled on any particular favorable termination rule. But the cases and treatises that the respondent latched onto addressed a separate issue—not whether the prosecution had terminated in the defendant’s favor, but whether the prosecution had been terminated at all. In particular, courts were divided over whether a prosecutor’s dismissal without discharge by a judge in fact terminated a prosecution.
  10. Some courts concluded that a prosecution ended when the prosecutor dismissed the case, even if the court had not yet taken action. Other courts said that a prosecution did not end until a judge discharged, or formally released, the defendant from the case. But those cases did not purport to alter the basic favorable termination principle—namely, that a malicious prosecution claim could proceed when the prosecution terminated without a conviction.
  11. The respondent also seized on a comment in the American Law Institute’s 1976 Second Restatement of Torts saying that for purposes of a malicious prosecution claim, a criminal case terminated in favor of the accused when the prosecution ended in a way as to indicate the innocence of the accused. But the respondent’s reliance on the 1976 Restatement was flawed because the Restatement did not purport to describe the consensus of American law as of 1871, at least on that question. The status of American law as of 1871 was the relevant inquiry for the court’s purposes. In the overwhelming majority of American jurisdictions that had considered the issue as of 1871, a plaintiff alleging malicious prosecution did not need to show that his prosecution had ended with some affirmative indication of innocence.
  12. The question of whether a criminal defendant was wrongly charged did 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 could not 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 42 U.S.C. of 1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allowed a claim when the government’s evidence was substantial enough to proceed to trial. Requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence was not necessary to protect officers from unwarranted civil suits— among other things, officers were still protected by the requirement that the plaintiff showed the absence of probable cause and by qualified immunity.
  13. A Fourth Amendment claim under 42 U.S.C. of 1983 for malicious prosecution did not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff needed only show that the criminal prosecution ended without a conviction. The plaintiff had satisfied that requirement. The court expressed no view, however, on additional questions that could be relevant on remand, including whether the plaintiff was ever seized as a result of the alleged malicious prosecution, whether he was charged without probable cause, and whether respondent was entitled to qualified immunity. On remand, the Second Circuit or the District Court as appropriate could consider those and other pertinent questions.

The Supreme Court reversed the judgment of the U. S. Court of Appeals for the Second Circuit and remanded for further proceedings consistent with that opinion.

Per Alito, Thomas and Gorsuch, SCJJ (Dissenting opinion)

  1. The court created 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 Supreme Court never held that the Fourth Amendment housed a malicious-prosecution claim, and the court defended its analogy with just two sentences of independent analysis and a reference to a body of lower court cases.
  2. A comparison of the elements of the malicious-prosecution tort with the elements of a Fourth Amendment unreasonable-seizure claim showed that there was no overlap. A plaintiff suing for unreasonable seizure needed 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. The unreasonable-seizure claim did not require proof that there was a prosecution—i.e., a criminal proceeding that was initiated by the filing of charges in the form of a criminal complaint, information, or indictment—while a malicious-prosecution claim obviously required a prosecution.
  3. The interest in freedom from unjustifiable litigation was protected by an action for malicious prosecution. A person who was arrested without probable cause could have a viable unreasonable-seizure claim even if he or she was released before any charges were filed. An unreasonable-seizure claim also did not require malice. The court had almost uniformly rejected invitations to probe subjective intent in Fourth Amendment cases. If a law enforcement officer made an arrest without probable cause, the arrest would be unreasonable and therefore unconstitutional even if the officer harbored no ill will for the arrestee. Likewise, if an officer made an arrest with probable cause, there was no Fourth Amendment violation regardless of the actual motivations of the individual officers involved.
  4. The validity of an unreasonable-seizure claim was not dependent on the outcome of any prosecution that happened to follow a seizure. A person who was arrested without probable cause but then convicted based on evidence discovered after the arrest was not barred from recovering simply because he or she could show a favorable termination to the proceeding. Thus, an unreasonable-seizure claim could be shown without proving any of the elements of a common law malicious-prosecution claim. Turning to the elements of malicious prosecution, it was evident to see that all of those could be established without proving either of the two elements that the constitutional text and the precedents required in order to establish an unreasonable seizure.
  5. The tort of malicious prosecution did not require a seizure within the meaning of the Fourth Amendment. There were cases in which defendants charged with non-violent crimes agreed to appear for arraignment and were then released pending trial on their own recognizance. Those defendants were prosecuted, and they could bring a common-law suit for malicious prosecution if the other elements of that tort could be shown, but they were not seized.
  6. Since a malicious-prosecution claim did not require a seizure, it obviously did not require proof that the person bringing suit was seized without probable cause. The claim did demand proof that the person bringing suit was prosecuted without probable cause, but probable cause at the time of arrest was a different question from probable cause at the time at which a prosecution was initiated. In light of the differences between these two claims, it was apparent that a Fourth Amendment unreasonable-seizure claim was not analogous to a claim for malicious prosecution. Much more analogous were the common-law torts of false arrest and false imprisonment, which protected against every confinement of the person, including one effected by forcibly detaining someone in the public street.

Relevance to Kenya’s legal system

In the Constitution of Kenya 2010, article 48 elaborates on access to justice when it notes that the state has a role to foster access to justice for all persons. Article 49 explains on the rights of arrested persons. In subsection 1 (a), it notes that:

An arrested person has the right to be informed promptly, in language that the person understands:

  1. the reason for the arrest;
  2. the right to remain silent; and
  3. the consequences of not remaining silent.

Article 50 talks of fair hearing. Sub-section 50 (2) (a) highlights the right to fair hearing where one is to be presumed innocent until the contrary is proved, (b) adds that fair hearing includes being informed of the charge, with sufficient detail to answer it. Article 51 enunciates the rights of persons detained, held in custody or imprisoned.

InThuita Mwangi & 2 Others v Ethics & Anti-Corruption Commission and 3 Others [2013] eKLR and Republic v Commissioner of Police and Another ex parte Michael Monari &Another [2012] the court addressed itself on the mandate of the police to mount investigations and stated:

The police have a duty to investigate on (sic) any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.

In Diamond Hasham Lalji & another v Attorney General and 4 others[2018] eKLR, the same court stated that:

The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.

The US Supreme Court case is therefore important to the Kenyan jurisprudence in advancing the law under malicious prosecution and what a complainant needs to prove to bring the claim before a court.

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