Fourth Amendment and Fourteenth Amendment - malicious prosecution and s. 1983: is there a constitutional violation remediable under Section 1983?

• Author: Wunsch, Eric J.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Albright v. Oliver,(1) the United States Supreme Court addressed whether the claim of malicious prosecution is actionable under 42 U.S.C. [sections] 1983.(2) The plurality concluded that "substantive due process may not furnish the constitutional peg on which to hang such a 'tort.'"(3) Therefore, it rejected petitioner's Fourteenth Amendment substantive due process claim to be free from prosecution absent probable cause.(4)

   This Note examines the development of the federal jurisprudence concerning claims for malicious prosecution under [sections] 1983. This Note argues that, in Albright, the Court correctly disposed of petitioner's Fourteenth Amendment substantive due process claim to be free from prosecution absent probable cause. However, this Note asserts that procedural due process is also implicated by an arrest and initiation of a criminal prosecution, and that application of the Fourth Amendment to a [sections] 1983 claim based on malicious prosecution, while precluding substantive due process review, should not preclude procedural due process review.(5) Ultimately, this Note concludes that alleged constitutional violations as a result of malicious prosecution are properly analyzed under both the procedural due process clause of the Fourteenth Amendment and the "objective reasonableness" standard of the Fourth Amendment, but not under the "open-ended" Due Process Clause of the Fourteenth Amendment.

2. BACKGROUND

   42 U.S.C. [sections] 1983(6) provides a legal remedy for the violation of constitutional rights conferred in other areas of the Constitution.(7) Under the statute, an individual must first "identify[] the specific constitutional right allegedly infringed."(8) The Supreme Court has recognized that the statute was "meant to give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official's abuse of his position."(9) However, the courts have not held that every common-law tort committed by an individual acting "under color of law"(10) is actionable under [sections] 1983. In the case of malicious prosecution, there has been an "embarrassing diversity of judicial opinion" as to whether it is actionable under the section.(11) Until Albright, the Court had never addressed whether malicious prosecution could be actionable under [sections] 1983.

   1. THE COMMON LAW TORT OF MALICIOUS PROSECUTION

   The common law tort of malicious prosecution generally requires four elements: (1) the defendant must have initiated a criminal proceeding; (2) the proceeding must have ended in the plaintiff's favor; (3) the proceeding must have been initiated without probable cause; and (4) the defendant must have acted maliciously in the initiation of the prosecution.(12) Although the elements of the tort have been clearly established, courts have differed on whether a well-pleaded complaint based upon malicious prosecution by a government official "acting under color of law" provides a cause of action under [sections] 1983.(13) The debate entails not only whether malicious prosecution itself violates the federal Constitution, but also what particular provision the tort violates.(14) The federal courts have split almost evenly on the issue of whether a plaintiff must allege more than the common law tort of malicious prosecution to state a claim under [sections] 1983.

   1. Allegation of Malicious Prosecution Violates the Constitution: The

      Expansive Approach

      The most liberal approach taken with respect to an allegation of malicious prosecution under [sections] 1983 has been clearly articulated by the Third Circuit, which held that an allegation of the elements of the common law tort, by itself, states a claim under [sections] 1983 for violation of a constitutional right.(15) In Lee v. Mihalich,(16) plaintiffs brought an action against investigators in the Medicaid Fraud Control Office Unit of the Office of the Pennsylvania Attorney General alleging abuse of process and malicious prosecution against them pursuant to a Medicaid fraud suit that was dismissed as time-barred.(17) While the court held that the defendants were entitled to a defense based upon qualified immunity,(18) the court determined that a successful allegation of malicious prosecution against an individual acting under color of law violates [sections] 1983.(19) Nevertheless, the court intimated no view with respect to what provision or provisions of the Constitution the common law malicious prosecution claim violates.(20)

      Similarly, other circuits have applied the Lee rationale to an allegation of malicious prosecution against a sheriff and investigating officer pursuant to a grand larceny arrest;(21) an allegation against police officers pursuant to a vacated narcotics conviction;(22) an allegation against prosecuting attorneys pursuant to an unpaid bank loan;(23) and an allegation against an investigator in the Office of the Attorney General for the State of Alabama pursuant to a forgery indictment.(24) The expansion of the rationale into these areas indicates that the only requirement for bringing a claim of malicious prosecution under [sections] 1983 is an allegation of "action under color of law."(25)

   2. Malicious Prosecution, Without More, Does Not Violate the

      Constitution: The "Malicious Prosecution Plus" Approach

      Other circuit courts of appeals, however, have held that an allegation of common law malicious prosecution does not violate a provision of the Constitution unless it is "'intended to subject a person to denial of constitutional rights.'"(26) These courts recognize that malicious prosecution may be part of a cognizable [sections] 1983 claim, but "only if the defendants' conduct also infringes some provision of the Constitution or federal law."(27) Therefore, their decisions require a plaintiff to allege not only malicious prosecution, but also that the abuse of the legal process was "so egregious as to subject the aggrieved individual to a deprivation of constitutional dimension."(28)

      In Torres v. Superintendent of Police of Puerto Rico,(29) the First Circuit, after recognizing the split among the other circuits,(30) adopted the standard that to establish liability in a [sections] 1983 claim based upon malicious prosecution, a plaintiff must show that the defendant "subject[ed] the plaintiff to a deprivation of constitutional magnitude."(31) Specifically, the court held that a complaint based on malicious prosecution must allege a violation of procedural or substantive due process rights under the Fourteenth Amendment.(32) Applying this standard, the court found that the plaintiff's claim(33) "show[ed] neither 'conscience-shocking' conduct nor met the requisites of a procedural due process claim."(34) Nevertheless, by analyzing petitioner's claim under a Fourteenth Amendment rubric, the First Circuit recognized that, at some level, a complaint based upon malicious prosecution may violate [sections] 1983.(35)

      Similarly, applying the standard that a [sections] 1983 claim based upon malicious prosecution must allege a specific constitutional violation, the Ninth Circuit held that a complaint alleging "that the defendants illegally arrested [the plaintiff], submitted false reports and initiated his criminal prosecution in bad faith" successfully stated a cause of action under [sections] 1983 because the defendants "intended to deprive a person of the equal protection of the laws."(36) Therefore, while several circuit courts of appeals have held that malicious prosecution, itself, does not state a claim under [sections] 1983,(37) all have recognized that, at some level, "malicious prosecution can form the basis for a section 1983 action."(38)

   3. The Constitutional Provision Violated

      In addition to the split on whether malicious prosecution states a claim under [sections] 1983, the circuit courts of appeals have differed as to what provision[s] of the Constitution a [sections] 1983 claim based upon malicious prosecution violates. Section 1983 requires, as a prerequisite to a claim brought under the constitutional provision, an allegation of infringement upon a specific constitutional right.(39) Applying this requirement to "constitutional tort" cases based upon malicious prosecution, circuit courts of appeals have held that the [sections] 1983 claim can violate Fourteenth Amendment procedural due process rights,(40) Fourteenth Amendment substantive due process rights,(41) Fourteenth Amendment equal protection rights,(42) Fourth Amendment rights incorporated against the States through the Fourteenth Amendment,(43) and a combination of both Fourth and Fourteenth Amendment rights.(44) This broad disparity between the circuit courts of appeals has provided little guidance for a plaintiff attempting to allege a constitutional violation based upon [sections] 1983.

   4. The State Tort Remedy

      Although all circuit courts of appeals have held that a [sections] 1983 claim based upon malicious prosecution can violate the Constitution, many circuit courts have nevertheless denied relief for a plaintiff "where state law affords an adequate remedy."(45) Stating the rationale for this limitation on recovery under [sections] 1983, the Seventh Circuit noted that "[t]he multiplication of remedies for identical wrongs, while gratifying for plaintiffs and their lawyers, is not always in the best interest of the legal system or the nation."(46) Furthermore, this limitation has been applied pursuant to past Supreme Court decisions holding that an adequate state postdeprivation remedy denies relief under [sections] 1983.(47)

      In Parratt v. Taylor,(48) the Court held that unauthorized conduct by state officials resulting in a loss of property did not constitute a denial of due process within the meaning of the Fourteenth Amendment where there was an adequate state remedy available.(49) Relying upon this holding, the First Circuit has held that "the availability of an adequate remedy for malicious prosecution under...