top of page
  • Writer's pictureBennett Nuss

Legal tracking: Malicious prosecution at issue in Thompson v. Clarke

Updated: Oct 19, 2023

Malicious prosecution is a major problem in the United States. The Washington Post found government misconduct in some manner caused over half of all wrongful criminal convictions. However, following a 6-3 ruling handed down by the Supreme Court on April 4, 2022, the wide privileges generally granted to the government have been substantially stripped back, providing victims of malicious prosecution an avenue to sue police departments and prosecution offices that engage in the practice.

The Supreme Court established this rule in Thompson v. Clark. In this case, Larry Thompson was charged with sexually abusing his baby daughter after his sister-in-law reported him. Four police officers entered Thompson's house, physically accosted him without a warrant and arrested him. He was charged with obstruction of justice and assaulting officers among other offenses and detained at the local jail. Upon examination of Thompson’s daughter, the only marks found on her were from a diaper rash, and the police discovered the sister-in-law who reported the alleged crime had a history of debilitating mental illness.

The prosecuting attorney dismissed the charges against Thompson at his first appearance in court. However, Thompson sued the police department under 42 U.S.C. Section 1983, claiming several due process violations. Thompson primarily alleged a claim of malicious prosecution, which became the district court’s focus of the case.

In the opinion, the Supreme Court stated the Second Circuit’s rule for handling malicious prosecution under Section 1983 requires a petitioner to show that their underlying “criminal prosecution ended not merely without a conviction, but also with some affirmative indication of [their] innocence.” As such, the district court dismissed the malicious prosecution charge because “Thompson’s criminal case had not ended in a way that affirmatively indicated his innocence because Thompson could not offer any substantial evidence to explain why his case was dismissed.” This is the issue for which the Supreme Court granted certiorari after the Second Circuit affirmed the dismissal.

Justice Kavanaugh, joined by Justices Roberts, Stevens, Kagan, Sotomayor and Barrett, constructed a new rule by which falsely accused parties can sue police departments under Section 1983. Upon reviewing the circumstances surrounding the Enforcement Act of 1871, the enabling statute for Section 1983, Justice Kavanaugh wrote there was little evidence that any other court in the country mirrored the heightened standard taken by the Second Circuit. In his words: “In most American courts that 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.”

The majority of the Court reinstated the original standard. As Justice Kavanaugh wrote: “In sum, we hold that a Fourth Amendment claim under §1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff need only show that the criminal prosecution ended without a conviction.” The Court ruled for Thompson and reinstated his malicious prosecution claim.

Justices Alito, Thomas and Gorsuch dissented, claiming that the majority opinion casts aside far too much court precedent on the issue. Justice Alito objected on three counts. First, he argued it is unclear why malicious prosecution requires both a seizure (a detention) and a prosecution, because practically, they do not always co-exist. Second, he stated there is little consideration as to whether the government should be inoculated from the malicious prosecution claim if there was probable cause or a legitimate law enforcement purpose. Finally, he stated the Court is profoundly unclear as to what a “wrongful initiation of charges without probable cause” means. In the alternative, Justice Alito suggested that malicious prosecution claims cannot constitutionally be brought under the Fourth Amendment, as the Amendment’s implied applications do not encompass the elements of the tort.

The majority’s ruling will have considerable impact on common police practices when it comes to detaining and charging suspects. If law enforcement officers wantonly prosecute individuals and subsequently dismiss the suits because there was insufficient evidence, agencies can be held liable for a malicious prosecution charge without the plaintiff providing an affirmative argument of their actual innocence. Justice Alito’s concerns that there are almost no limiting factors regarding detentions conducted with probable cause or legitimate government interest have merit and should not be discounted. This question will have to be developed with further jurisprudence.

Hopefully, this ruling will deter malicious prosecutions, resulting in fewer innocent people being accosted by officers. However, the remaining holes in the Court’s holding should be considered in future cases.


Recent Posts

See All


bottom of page