Supreme Court Makes Malicious Lawsuits Easier : NPR


The United States Supreme Court building is seen at dusk in Washington on October 22, 2021.

J. Scott Applewhite/AP


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J. Scott Applewhite/AP

Supreme Court Makes Malicious Lawsuits Easier : NPR

The United States Supreme Court building is seen at dusk in Washington on October 22, 2021.

J. Scott Applewhite/AP

The U.S. Supreme Court on Monday eased the prosecution of police and prosecutors for malicious prosecution. But the decision still leaves in place other obstacles to such prosecutions.

At the center of the decision is a case of diaper rash. Yes, diaper rash.

Larry Thompson was living with his then-fiancée (now wife) and their newborn baby when his sister-in-law, who apparently suffered from mental illness, called 911, claiming Thompson was abusing the baby. When EMT agents arrived, they were admitted to the apartment by the sister-in-law, but Thompson, ignoring her 911 call, told them they must have the wrong address.

The EMT officers left, but returned to the apartment with four New York City police officers. This time Thompson opened the door and refused to admit them unless they had a search warrant. Police then threw Thompson to the ground and handcuffed him while paramedics examined the baby. The only marks they found were diaper rash, but the baby was taken to hospital where the diagnosis of diaper rash was confirmed.

Thompson, however, was thrown in jail for two days and charged with resisting arrest and obstructing government administration. Prosecutors would eventually offer him a plea deal in which his record would ultimately be expunged, but he refused, and prosecutors later dropped all charges without any explanation.

Thompson sued, alleging malicious prosecution. But under New York federal appeals court precedent, Thompson had to prove that his innocence had been “asserted.” Dropping the charges without explanation was not enough.

On Monday, the Supreme Court sided with Thompson in saying he did not have to show an “affirmative indication of innocence.” The vote was 6-3, with three conservative justices – Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – joining the courts, three liberals in the majority.

Judge Kavanaugh wrote the majority opinion, saying a plaintiff need only show that their lawsuit ended without a conviction, and Thompson did that here.

“This is a welcome development that allows police and prosecutors to be held accountable when they do something wrong,” said Georgetown law professor Mary B. McCord, who filed a brief in the case on behalf of some 70 former prosecutors.

Until that ruling, in many jurisdictions “it didn’t matter that entrapping an innocent person completely upsets their life,” said Amir Ali, who represented Thompson on the Supreme Court. “If the charges were dismissed, there was no redress for the injured party,” unless a court declared their innocence.

“I think this is a long overdue decision,” said Michael Bromwich, who spent years as a prosecutor, defense attorney and inspector general for the US Department of Justice. ‘Prosecutors get away with it way too much’ when they realize they may not have a case and want to shield law enforcement from liability, he said. declared.

It’s not an ‘open the floodgates’ decision, expert says

But Bromwich, like other experts, warned that bringing those malicious lawsuits might not be easy.

“It’s not an open decision,” McCord warned. Indeed, the court’s opinion specifically referred Thompson’s case to lower courts, where other defenses may be raised by law enforcement officials.

As Paul Butler, a law professor at Georgetown University observes, “These civil cases are hard to win, and when you do win them, the damages are often very small, so it can be very difficult to find a attorney “.

He and McCord, both former prosecutors, note, for example, that there remain other tools that immunize police and prosecutors from prosecution.

And as Butler said, “It’s not like [the Supreme Court’s] the curators suddenly woke up. …Liberals should not bother with a methodology based on understanding the law of torts in 1871.” Judge Kavanaugh, in his view, indicated that the court must begin its analysis on the basis of the torts available in 1871 because that was the year Congress passed the law authorizing the prosecution of state and local officials who deprive individuals of their rights “under the guise of state law. But that’s not necessarily the understanding of tort law today.

Conservative justices Samuel Alito, Clarence Thomas and Neil Gorsuch disagreed with Monday’s decision. Writing for the three, Alito said, “What the court has done is recognize a new hybrid claim of uncertain scope that has no basis in the Constitution and is almost certain to be confusing.”


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