Centaurs, Jean Valjean, and a proposed three-sentence ruling on the meaning of favorable termination
on Oct 13, 2021 at 5:58 pm
Mythological creatures and French literary heroes appeared during argument in Thompson v. Clark Tuesday, as the justices sought to define “favorable termination” in certain Fourth Amendment claims under 42 U.S.C. § 1983.
Under Section 1983, an individual who is accused of a crime and believes his constitutional rights were violated can sue government actors for civil damages. But the individual must show that the criminal proceeding was terminated in her favor. Thompson involves a Fourth Amendment unreasonable-seizure-through-legal-process claim, and the question is whether the plaintiff must show that the criminal proceeding ended in a way that “affirmatively indicates innocence” or only that it “formally ended in a manner not inconsistent with” innocence.
Larry Thompson was charged with resisting arrest and obstructing a government investigation when he attempted to stop police from entering his apartment in response to a false call about child abuse. The prosecution dismissed the charges. Thompson’s claim before the Supreme Court is against one responding officer, Pagiel Clark, who signed a criminal complaint during Thompson’s initial post-arrest detention.
Amir Ali argued for Thompson. He defined favorable termination as a prosecution that ends without a conviction, including by dismissal of the charges. The favorable-termination rule seeks to avoid parallel civil and criminal proceedings, to avoid inconsistent judgments, and to prevent individuals from using civil litigation to collaterally attack convictions. None of those interests are threatened when a civil case is brought following dismissal of criminal charges, Ali argued.
The justices pushed Ali to define the nature of Thompson’s civil claim, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh pushing on the elements of that claim, the timing of the seizure, and whether the court should decide these antecedent issues rather than the question presented. Ali insisted that Thompson was pursuing the claim for unreasonable seizure through legal process described in Manuel v. City of Joliet. He identified two seizures: the almost 40 hours Thompson was held in custody, during which period Clark filed the allegedly false criminal complaint, and the period between his release on his own recognizance and the dismissal of the charges. Ali resisted multiple suggestions that Thompson was bringing a stand-alone malicious-prosecution claim under the Fourth Amendment or that favorable termination attached to the Fourth Amendment as opposed to Section 1983. He also urged the court to avoid numerous issues about the scope and elements of the claim because Clark had not raised them below.
Justice Stephen Breyer introduced Jean Valjean, the protagonist sent to prison for stealing a loaf of bread to feed his family in Victor Hugo’s Les Miserables. Breyer wondered whether Valjean could bring a claim if the prosecution had dismissed the theft charges as an act of mercy. Breyer and Chief Justice John Roberts questioned whether a dismissal of criminal proceedings should be a favorable termination, given the many reasons that prosecutors might dismiss charges — as part of a cooperation agreement, as an act of mercy, or out of prosecutorial caseload concerns. Ali responded that the reason for dismissal affects the success of the Fourth Amendment claim, including whether the plaintiff can prove lack of probable cause and overcome qualified immunity. Ali acknowledged in response to later questions from Alito and Kavanaugh that causation may be difficult to prove in this case, as Thompson must show that he would have been released from custody sooner but for the allegedly false criminal complaint. Those elements — lack of probable cause, qualified immunity, and lack of causation — weed out weak claims. Favorable termination serves a different purpose — preserving the finality of the criminal judgment.
United States as amicus curiae
Jonathan Ellis, assistant to the solicitor general, argued for the United States in support of Thompson. The U.S. agreed with Thompson about the claim but identified one actionable seizure — the period in custody caused by the “unfounded and unwarranted” criminal complaint — while rejecting the period during the pendency of ordinary criminal charges as an actionable seizure. The U.S. also agreed about the purposes and scope of favorable termination and that it did not require indications of innocence.
Thomas, Gorsuch, and Justice Elena Kagan returned Ellis to the nature of the right, the elements of the claim, and whether the court could assume antecedent issues to focus on the later favorable-termination issue. Ellis argued that Clark had waived many of these issues, but the courts of appeals could benefit from resolution of others. And, he emphasized, favorable termination is easily satisfied here.
Alito then released the centaur. He compared ignoring whether the Fourth Amendment claim exists to asking a medical expert whether a centaur, the mythological creature with the upper body of a human and lower body and legs of a horse, would contract lung cancer from smoking five packs of cigarettes a day; the court cannot define or analyze the claim if the claim is “fanciful.” Ellis argued that Thompson brought the claim recognized in Manuel and that Fourth Amendment malicious prosecution was not the focus of this case. Favorable termination serves important values independent of other elements of the tort and thus should be retained.
Clark’s attorney, John Moore, argued that the U.S. Court of Appeals for the 2nd Circuit got it right in defining favorable termination to mean criminal charges terminated in favor of the criminal defendant in a way reflecting on the merits of those charges. The rule, he said, has strong support in common law and exists for good reason. But he urged the court to resolve the case on the foundational issue that Thompson brought a claim for malicious prosecution that is not cognizable under the Fourth Amendment.
Breyer and Kavanaugh pushed Moore on how this definition of favorable termination fits with the criminal-justice process and how plaintiffs can meet that requirement. Kavanaugh called it an “upside down rule” — those falsely accused whose claims are dismissed early cannot sue unless they can dig into the prosecutor’s mindset, while those who go to trial can sue. Breyer suggested that actual practice runs contrary to Clark’s position, because normal proceedings do not affirmatively indicate innocence; prosecutors dismiss cases, and the accused does not object to dismissal. Moore cited statistics from an NAACP amicus brief showing that 85% to 90% of dismissals are for reasons wholly independent of the merits. But because the prosecutor decides whether to dismiss criminal charges and the police officer is the defendant in the Section 1983 action, an indication of innocence connects the elements to the officer’s conduct.
Moore had lengthy exchanges with Roberts, Justice Sonia Sotomayor, and Kagan about whether the court can and should resolve the “downstream” issues of favorable termination without resolving the “upstream” issues of identifying the precise claim, the constitutional source for the claim, and the elements of the claim. Moore argued that the court cannot define the scope and meaning of favorable termination without determining the existence and elements of the claim, which in turn depend on the constitutional source of the right. A Fourth Amendment claim challenging an unreasonable seizure does not impugn convictions or criminal proceedings, so the reasons for a favorable-termination requirement are absent. Those reasons were present in the court’s prior favorable-termination cases, which considered due process claims. Moore conceded in response to a question from Justice Amy Coney Barrett that his arguments are stronger on the upstream issues than on the downstream issue in the question presented.
Ali argued that the court could resolve the case in “three sentences; two, if you like semi-colons.”
He urged the court to write that the 2nd Circuit decided that the favorable-termination requirement for some Section 1983 claims requires indications of innocence, but it does not; a criminal proceeding terminates in favor of the accused when it ends without a conviction.