THE DEMISE OF s. 1983 MALICIOUS PROSECUTION: SEPARATING TORT LAW FROM THE FOURTH AMENDMENT.

Author:McMannon, Erin E.
 
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INTRODUCTION

"Actions for malicious prosecution are regarded by law with jealousy and they ought not to be favored but managed with great caution." (1) Despite this common sentiment among courts, every state recognizes the common-law tort of malicious prosecution. After the Supreme Court's decision in Albright v. Oliver, (2) the first time the Court addressed federal malicious prosecution claims under 42 U.S.C. [section] 1983, lower federal courts spent twenty-three years trying to define the constitutional tort of malicious prosecution. (3) What are the elements of the claim? What constitutional provision, if any, does a malicious prosecution violate? Does an independent claim for malicious prosecution under [section] 1983 even exist? In 2017 in Manuel v. City of Joliet, (4) the Supreme Court appeared ready to answer these questions and to resolve the various circuit splits surrounding federal malicious prosecution claims. As it turns out, the Court mostly ignored the malicious prosecution question, once again leaving the lower courts without guidance. (5) This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under [section] 1983. There is no constitutional right to be free from malicious prosecution. The better lens through which to analyze these claims, as the Court acknowledged in both Albright and Manuel, is the Fourth Amendment. (6)

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. (7) The "central thrust" of an action for malicious prosecution is a right not to be involved in an unjustified litigation. (8)

A malicious prosecution plaintiff at common law must show that the "prior proceeding: (1) was maliciously instigated or continued by the defendant, without probable cause; (2) was terminated in the plaintiff's favor; and (3) damaged the plaintiff." (9) "Malice," as used in the malicious prosecution context, "involves an intentional wrongful act done without legal justification" and "may consist of any improper and wrongful motive for bringing a criminal proceeding and does not require hatred of, or ill will toward, the plaintiff." (10) It is a term of art that "refers to the defendant's objective, not his attitude." (11)

Part I of this Note briefly discusses the history of 42 U.S.C. [section] 1983 and the development of the "constitutional tort" doctrine. It then summarizes the first Supreme Court [section] 1983 malicious prosecution case, Albright v. Oliver, and outlines the circuit split that developed in Albright's wake. Part II describes Manuel v. City of Joliet and the limited circuit court caselaw that followed. Lastly, Part III of the Note asserts that the confusion surrounding [section] 1983 malicious prosecution claims stems from the tendency of courts to become bogged down in semantics. By trying to force the malicious prosecution tort into the Constitution, the courts have remained faithful to neither tort principles nor constitutional principles. While Justice Alito correctly noted in his Manuel dissent that there is a "severe mismatch" between the Fourth Amendment and the elements of malicious prosecution, the real failing of Manuel was, not, as Justice Alito suggested, that it refused to answer the "malicious prosecution" question. (12) Rather, the problem with Manuel was the Court's failure to specify the elements of the type of [section] 1983 claim it recognized in Manuel--namely, unlawful detention after the start of legal process in violation of the Fourth Amendment. Part III ends with a suggested framework for such a claim.

  1. BACKGROUND

    In order to understand the confusion surrounding [section] 1983 malicious prosecution claims, it is necessary to briefly review 42 U.S.C. [section] 1983 and the rise of the "constitutional tort," as well as the Supreme Court's subsequent effort to rein in [section] 1983 liability. After this review, this Part proceeds to describe the Supreme Court's decision in Albright v. Oliver and the resulting circuit split.

    1. Section 1983 and the Development of the Constitutional Tort Doctrine

      Shortly after the Civil War, Congress passed the Ku Klux Klan Act of 1871 in response to the breakdown of justice in Southern states during Reconstruction. (13) The first section of the Act, codified today at 42 U.S.C. [section] 1983, provides a federal remedy for persons whose constitutional rights have been violated by state officials. (14) Until 1961, plaintiffs primarily used [section] 1983 to challenge state laws that allegedly violated the Constitution. (15) In Monroe v. Pape, however, the Supreme Court interpreted [section] 1983 to have a broader scope. Specifically, the Court affirmed that [section] 1983 applies to actions that violate state law as well as actions taken pursuant to state law. (16) Under Monroe, plaintiffs may use [section] 1983 to challenge both the constitutionality of state laws and policies, and the actions of state officials that violate state laws or policies and the Constitution. (17)

      The Court's decision in Monroe significantly increased the scope of liability under [section] 1983, creating what has come to be known as the "constitutional tort." (18) The scope of [section] 1983 liability continued to expand in the lower courts (19) until 1976 when the Supreme Court began to rein in the reach of constitutional torts in Paul v. Davis. (20) There, then-Justice Rehnquist made clear that not all tort injuries inflicted by the state as the tortfeasor implicated federal constitutional rights. He held that such an interpretation would "make of the Fourteenth Amendment a font of tort law," which is not what Congress intended when it passed [section] 1983. (21) In the 1980s, Parratt v. Taylor (22) restricted access to federal remedies by holding that "availability of an adequate state remedy precluded the finding of constitutional deprivation required to maintain a section 1983 cause of action." (23) Then, in Daniels v. Williams, the Court held that negligent acts by state officials do not provide the requisite deprivation for a due process claim under [section] 1983. (24) "Historically," Justice Rehnquist wrote, "[the Fourteenth Amendment's] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.... [I]t serves to prevent governmental power from being 'used for purposes of oppression.'" (25) Mere negligence does not implicate those concerns. (26) Not all common-law duties owed by officials acting under color of state law were "somehow constitutionalized by the Fourteenth Amendment." (27)

      The decisions addressing "constitutional torts" raised more questions than they answered, leaving lower courts to puzzle over the scope of liability under [section] 1983. The lower courts' treatment of [section] 1983 malicious prosecution claims, and the Court's fractured opinion in Albright v. Oliver? (28) exemplified this struggle. (29)

    2. Albright v. Oliver

      The Supreme Court first addressed [section] 1983 malicious prosecution claims in the case of Albright v. Oliver. Although prior to Albright the appellate courts dealt extensively with such claims, they could not agree on the proper analysis for evaluating the constitutional tort. (30) As it turned out, neither could the Supreme Court. In a plurality opinion, four concurring opinions, and a dissent, the Court agreed on little more than the dismissal of Albright's complaint. Five Justices did agree that Albright should have brought his claims under the Fourth Amendment, but they disagreed about the scope and elements of any such claim.

      The Court considered Albright's [section] 1983 claim that the defendant deprived him of his right to be free from prosecution without probable cause under the substantive Due Process Clause of the Fourteenth Amendment. (31) After observing that "the Court has always been reluctant to expand the concept of substantive due process," (32) Chief Justice Rehnquist explained that incorporation of the Bill of Rights by the Fourteenth Amendment protects against arbitrary abuses of power by the government and diminishes any need to expand substantive due process. (33) "Where a particular Amendment 'provides an explicit textual source of constitutional protection'... 'that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" (34) Against this background, the Court held that the Fourth Amendment is the proper vehicle to protect against arbitrary pretrial deprivations of liberty. The Court refused, however, to opine on whether Albright's claim would succeed under the Fourth Amendment. Instead, the plurality determined merely that because a specific constitutional provision governed Albright's case, Fourteenth Amendment substantive due process did not. (35)

      The myriad opinions in Albright demonstrated that, like the courts of appeals, the Supreme Court could not agree on the appropriate analysis for a [section] 1983 malicious prosecution claim. In addition to the plurality opinion, joined by Justices O'Connor, Scalia, and Ginsburg, there were four concurring opinions and a dissent. (36) Justice Scalia wrote separately to explain that the protections afforded by the Bill of Rights cannot "be supplemented through the device of 'substantive due process.'" (37) Justice Ginsburg wrote a separate opinion to expand upon her idea of a "continuing seizure" under the Fourth Amendment. (38) A third opinion, written by Justice Kennedy, concurred only in the judgment. (39) Relying on an expansive reading of Parratt, he noted that, while the Due Process Clause may protect interests like those protected by...

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