Courthouse Steps Decision: Determining Finality for Pursuing Liability: The Implications of Thompson v. Clark

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Jenny Mahoney:  Welcome to The Federalist Society’s webinar call. In today’s Courthouse Steps Decision webinar, we discuss “Determining Finality for Pursuing Liability: The Implications of Thompson v. Clark.” My name is Jenny Mahoney, and I am Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call. Throughout the panel, if you have any questions, please submit them using the Q&A feature located at the bottom of the screen so that our speakers will have access to them when we get to that portion of the webinar. Today, we are fortunate to have with us our moderator, Marc Levin, Chief Policy Counsel for the Council on Criminal Justice and Senior Advisor for Right on Crime, who will introduce today’s panelists. With that, thank you for being with us today. Marc, the floor is yours.

 

Marc Levin:  Yes. Thank you for joining us, and we look forward to having a very full and balanced discussion of Thompson v. Clark as well as the implications of this recent decision by the Supreme Court. For background, in Thompson v. Clark, the plaintiff sought to bring a civil lawsuit, claiming he was the victim of a wrongful seizure after police allegedly entered his apartment without a warrant based on what turned out to be unsubstantiated allegations of child abuse. Thompson was charged with resisting arrest amid this warrantless raid, but prosecutors subsequently elected to drop this criminal charge against him. Then the question that arose was whether this result—the dropping of the charges—though short of a formal exoneration, was sufficient to meet the requirement that there be a favorable conclusion of the criminal case against Thompson before he could pursue his civil suit against the police for this seizure.

 

So one of the reasons this case is attracting considerable interest is the interesting 6-3 lineup on the Court. And the dissenters were, perhaps unsurprisingly, Alito and Thomas but also Gorsuch who has often ruled in favor of criminal defendants and is something of a civil libertarian, which also meant, of course, that the majority opinion included both Chief Justice Roberts and Justice Amy Coney Barrett.

 

What I’d like to do, when we turn it over to the two panelists I’ll introduce momentarily, is talk a little bit, initially, about the facts of the case, including the fact that there’s a real person involved, as in all Supreme Court cases—although I guess some involve corporations—but a person who really faced a very difficult circumstance and was seeking relief. But the question then becomes whether this is a case of bad facts making bad law, as some critics would say, or whether this is a welcome decision because it lowers the procedural hurdle to holding government accountable. And then, beyond the facts of the case, we’re really going to look towards the implications for the future. On the one hand, some may be concerned that prosecutors may be more reluctant to drop cases. How does this intersect with qualified immunity? And then, perhaps really importantly, if the dissenters had prevailed, what’s the alternative? Could the suit have ever proceeded? And if so, how?

 

So these are some really interesting questions. And we have two perfect people to help us answer them because they were both authors or co-authors of amici briefs on different sides of this case. First, we have Marie Miller, who is an attorney with the Institute for Justice, a non-profit public interest litigation group focusing on economic liberty, property rights, and school choice. She received her law degree from Indiana University’s Maurer School of Law. She holds an undergraduate degree in music from the University of Notre Dame, where our second panelist, Vincent Stark, graduated law school, interestingly enough. And after law school, Marie clerked for Chief Justice Loretta Rush of the Indiana Supreme Court and for Judge Michael S. Kanne of the US Court of Appeals for the Seventh Circuit.

 

Also joining us is Vincent Stark, Assistant District Attorney in the Albany County New York District Attorney’s office, where he’s worked since April 2013, and he also served in the New York State Senate as a Senate fellow in the office of Toby Ann Stavisky. He, as I mentioned earlier, graduated from Notre Dame Law School and, prior to that, was an undergraduate -- received his degree from political science from Syracuse University.

 

So with that, Marie, let me turn it to you first to just give our audience, who may not have been closely following this case, a little bit of background of the facts that led up to it. And then, of course, hopefully feel free to move on to what IJ urged and what the court held. And then, we’ll turn it over to Vincent. And actually, Vincent, if you have something to add on the facts before kind of going into the rest of your initial presentation, feel free to do that. Marie, take it away.         

 

Marie Miller:  Sure. Thanks, Mark. So Larry Thompson was a navy veteran and a long-time US postal worker. And he and his then-fiancé were at home one night getting ready for bed, and they had a one-week-old newborn baby girl. And also living with them was Larry’s fiancé’s sister—so his now sister-in-law—who had some cognitive delays. And that person saw the baby cry when Larry would change her diaper, and she saw some red marks on the baby’s bottom, as well. And those marks turned out to just be diaper rash, but this sister-in-law mistook them for abuse, and she called 911.

 

EMTs showed up, and Larry addressed them at his doorway and said, “I don’t know what you’re talking about. No one here called 911.” Of course, he was not aware that his sister-in-law had called. And the EMTs saw the baby girl in her mother’s arms on the couch safe, and they left the doorway and then met four police officers who showed up. And they told the police officers, “We saw the baby. We think we need to examine her. We think we’re required to do that.” And so the police officers went to the door. Larry Thompson answered. He again said, “I don’t know who you might be looking for, but it’s not us. And if you want to come in, you need a warrant. I’d like to speak with your supervisor.” They said, “No. You’re not speaking with our supervisor. We’re not getting a warrant.” And eventually, they tackled him to the floor, and all because he would not allow them entrance to his home without a warrant. They examined the baby, took the baby to the hospital, and sure enough, the marks on her body were simply diaper rash.

 

The police officers arrested Larry Thompson, and he was held in jail for, I believe, about 36 hours. During the time that he was in jail, one of the police officers wrote up a report that Larry Thompson alleged fabricated the story to make it look like he had resisted the police in their unlawful entry into his home. Then, a prosecutor used that fabricated evidence to bring charges against Larry again while he was still in custody in jail. And ultimately, the prosecutor dismissed the case without any explanation, and the judge in the case also did not give any explanation for the dismissal of the criminal case. Later, Larry brought a civil lawsuit against the officer for causing him to be unreasonably seized because of the fabricated story that the officer provided to the prosecutor.

 

Ultimately, the Second Circuit decided that Larry Thompson could not proceed with that Fourth Amendment claim because he could not show that the criminal prosecution against him ended with some kind of indication of his innocence of the charges brought. And the Second Circuit was one of seven circuits to have this kind of an affirmative indications of innocence rule. The only other circuit to address whether this requirement exists for an unreasonable seizure claim based on lawful process was the Eleventh Circuit. The Eleventh Circuit said, “No. You do not need to show that your criminal case ended in a way showing your innocence. You just need to show that it ended in a way consistent with innocence, meaning that you just need to show that it ended without a conviction.” The Supreme Court took the case to resolve the split and ultimately decided that the minority rule should prevail—the Eleventh Circuit’s rule that a criminal case ends in favor of the defendant, meaning he can bring this so-called malicious prosecution claim if the criminal case ends without a conviction or without some concession of guilt in a plea agreement. So that’s a rundown of the case.

 

The Institute for Justice, my organization, filed an amicus brief urging the Court to adopt the Eleventh Circuit’s position. And we urged the Court to do that because the Second Circuit’s affirmative indications of innocence rule really had no basis in the common law history of Section 1983 under which this kind of claim arises. It also has no support in the text of Section 1983. So we were urging the court to adopt the Eleventh Circuit’s rule to provide a stable rule of law to govern these kinds of claims. And ultimately, the Court did adopt that position. So, Vincent, I’ll turn it over to you for your opening remarks and additions to the factual situation.

 

Vincent Stark:  Sure. Thank you, Marie. First of all, it’s a pleasure being here. Thank you for inviting me. In terms of the statement of facts, I think the rundown is fairly accurate. I think the one maybe friendly amendment I’d make is that there were a couple of tort claims that were made in addition to just the malicious prosecution tort that went to trial, and the plaintiff did not succeed on those ones. I’m trying to remember. Marie might remember them off the top of her head. But I think unlawful imprisonment was one of them. A false arrest, I think -- there were a few, again, Fourth Amendment sort of sounding in the Fourth Amendment 1983 actions that the plaintiff did not succeed at—all related to this same series of events. But what gets to the core is, in fact, as Marie said, this sort of narrow issue related to affirmative indications of innocence—whether or not affirmative indications of innocence really matters.

 

Now, why is the District Attorneys Association of the State of New York interested in something like that? I can tell you all here and now. I don’t speak for DAASNY, obviously, but I did speak for them in this brief. We’re not all that interested in the common law history in 1871 that we want to be heard on that. What we’re really interested in is, “What does that mean for today? What does that mean for district attorneys going forward at this time?” And when we looked at the briefs at the time they had been filed, we already had—I already had—access to the appellant’s brief. And I already had access to, I think, all of the amicus briefs that had been filed in favor of the appellant. I had Marie’s excellent brief and I think about a baker’s dozen more.

 

But the one that we were most interested in, from our perspective, was one filed by a group of former prosecutors and judges in favor of the appellant—mostly former federal prosecutors who said that this was something that they didn’t want to be in business of and they thought that the majority rule from the Second Circuit led to perverse incentives for prosecutors to get involved in essentially civil prosecutions. And we had a different perspective. When we discussed it as an organization, we said, “Actually, we think the perverse incentive would be if this majority rule were dispensed with.”

 

And so what we wanted to do – when you’re writing an amicus brief – and my thought and DAASNY’s thought was, we didn’t just want to rehash what everybody else was saying. Everybody else was arguing about the history of the common law torts in 1871. We thought that we could provide some context to that. And that’s why in my amicus, we go into an awful lot of detail about the historical development of district attorneys, which, prior to about 1800, we didn’t have public prosecutors in the United States. By about 1900, public prosecutors were everywhere.

 

So in 1871, you’re still very much in that developmental stage of public prosecutors replacing private prosecutions, even in the criminal realm. That’s important, one, because most of the malicious prosecution case law in 1871 is really related to private prosecutions. And so I don’t know that it really ports all that well into the modern world. Two, public prosecutors at that time, throughout most of the country, executed something called nolle prosequi. It still exists in some states. Marie can correct me if I’m wrong. I think it still exists in Indiana, and it was abolished in New York sometime around 1890 because nolle prosequi, as it existed then, was thought to be easily abused by unscrupulous prosecutors. So nolle prosequi would mean that, Mister Levin, we could file a charge against you and then dismiss it, but then we could refile the charge any time we wanted. So dismissal didn’t really mean the end of a case, which is probably why there was so much argument in these briefs back and forth about what did it really mean for a case to end in 1871. Just because a case was dismissed in some sense didn’t really mean the case was over. And that’s why there was so much question as to what it meant to be over.

 

So that was part of what we were doing there. And the other part was to just talk about the realities of prosecution today. In a sense, I was kind of thinking that the case would shake out sort of in the way that it did, which is that there would be one arm of the Court that would be willing to continue looking at Section 1983 by looking at common law in 1871 and trying to read malicious prosecution—that tort—into the Fourth Amendment. But I kind of figured it would be Justice Thomas, actually, who wrote the opinion. He always has very interesting, thought-provoking opinions that look and say, “Are we abstracting too much from the text of the Fourth Amendment? Can we really read in malicious prosecution—some tort—into the Fourth Amendment? Are we grafting something onto it that doesn’t exist?” And, in fact, we got Alito, Thomas, and Gorsuch.

 

We see that a lot in constitutional criminal procedure. Probably the number one example is the Miranda rule, right? Where exactly does that come from? I was actually thinking about that a few days ago when I read this opinion, and I said, “I wonder if Dickinson, which, of course, famously reaffirmed Miranda, was reargued today, would we have three votes instead of two to overrule Miranda?” I think maybe those would be the three likely votes. That’s probably neither here nor there. But I figured we might have a group that would say, “The Fourth Amendment has nothing to do with malicious prosecution.” You might have a group that says, “We’re going to look to the common law.”

 

And the group that I was really writing for was maybe Elena Kagan and Stephen Breyer—people who are very concerned about the purposes and the realities of the law today and are a lot more concerned about the common law today than they are about the common law in 1871. So that’s sort of what we were trying to do in our amicus brief, and I don’t think it had very much effect at all on how the Court came out. Maybe I failed. I don’t know. But it was interesting to write either way. So I guess that’s all I have to say in terms of my introduction.

 

Marc Levin:  Thanks. Well, and Marie, you didn’t really get too much beyond the facts in terms of discussing the legal approach that your brief advocated and how you interpreted the Court’s ruling. And then -- so I wanted to turn it over to you to discuss that. And then, I’d love for Vincent maybe to address if the Court had ruled -- if the minority had been the majority and your position had prevailed, when could someone like the plaintiff here bring their malicious prosecution suit if ever -- if it was similarly situated. But let me turn it over to you, Marie, first.

 

Marie Miller:  Sure. Thanks, Marc. And thanks, Vincent, for your thoughts. To focus a little more on what our brief was advocating, we were really looking at what the basis for such a favorable termination indications of innocence rule could be. And we were concerned that simply looking at policy reasons for that rule would create an unstable rule of law and one that created different rules across the nation. And, in fact, among the seven circuits who had addressed this question and decided that some form of indication of innocence was required had already developed some different approaches to their tests. And for example, the Second Circuit would look to see if the defendant had raised certain constitutional defenses like a speedy trial right. And if a case was dismissed on that ground, then it would be considered a favorable termination but not on other grounds. The Tenth Circuit took a different approach looking more at the totality of the circumstances.

 

So what we saw was these different circuits developing their indication of innocence rules on an ad hoc basis—just based on whatever case came before the Court figuring out how to apply this rule. And really, the rule raises a lot of questions like, how much evidence do you need to show that you are innocent of the charges brought against you? How should a court determine what kind of evidence is relevant? Should mini-trials basically take place to determine the basis for a dismissal of criminal charges?

 

Something similar to that happened in Larry Thompson’s case. A hearing was held to try to figure out what was the basis for the dismissal. And that process itself has some problems in invading the decision-making of prosecutors and the Executive Branch overall. So we saw that this indication of innocence rule or rules—each Circuit had their own—was quite mercurial. And if it was just based on these free-wheeling policy decisions by judges, then we’re going to end up with just inconsistent laws across the nation—inconsistent requirements for holding government officials accountable when they have violated constitutional rights.

 

And so we were looking at these rules and thinking, “Why should these rules be permitted to go off in all different directions when the common law and the purpose and text of Section 1983 provide such a solid foundation for a single rule that applies across the whole nation that’s easy to apply?” So we urged the Court to go that route in the interest of making the rule of law stable. And we analogized the problem with the indication of innocence rule to how qualified immunity has developed. Qualified immunity initially was at least ostensibly based on the common law, and then the Court took quite a turn away from the common law in its modern qualified immunity jurisprudence, and now, it is essentially not based at all in the common law and has taken on a life of its own. And so we were warning the Court, “Don’t let something like that happen in this favorable termination requirement for malicious prosecution claims.” And so that was the focus of our brief.

 

Marc Levin:  Yeah, and before I turn it over to Vincent to ask the previous question I said about what the alternative remedy would be, I just wanted to ask you, do you have any concern that this will lead to prosecutors perhaps, I guess, keeping -- not acknowledging that someone was innocent or keeping a case alive, extending it to, I guess, the individual’s statute of limitations, and their civil suit could run if the prosecutor kept just extending the case? Do you have any concern about any unintended consequences?

 

Marie Miller:  I don’t think those concerns outweigh the concern with prosecutors initially bringing charges with the understanding that bringing the charge and then dismissing the case can shield government officials from civil suit in the first place. So I think if there is concern about the reasons for dismissing or not dismissing a case, they’re equal to or less than any concerns that existed under the indication of innocence rule, creating an incentive for prosecutors to possibly bring charges that were baseless and then dismissing them to simply shield government officials. Now, that would offend their ethical obligations, I think, probably everywhere across the country.

 

But that doesn’t mean that we should have these incentives in the legal framework and the fabric that we have—incentives for prosecutors to do something wrong. Our legal fabric should encourage prosecutors to abide by their ethical obligations. And again, you could say, “Well, now we’re just trading that off for a point in time later in the criminal proceeding for whether to keep a case that’s already been brought or whether to dismiss it.” I suppose time will tell, but there are additional safeguards that prevent the floodgates of civil lawsuits from opening, and so prosecutors shouldn’t be worried about a whole bunch of civil cases coming as a result of this decision.

 

First of all, civil litigants will have to prove that the criminal prosecution lacked probable cause to begin with. And so if -- that’s a huge requirement that a civil litigant will have to show—that there was no probable cause. That alone will prevent a floodgate scenario. And second, litigants will have to overcome qualified immunity in a lot of cases. And qualified immunity, as we know, is a huge hurdle to overcome. So I don’t think that the consequences of this decision would be any worse than -- of the opposite decision. In fact, the opposite decision, if affirmative indications of innocence were required, would effectively close the door on many meritorious civil lawsuits. It would prevent people like Larry Thompson from being able to get through the courthouse door, and it also would create a strange disparity between similar cases.

 

And Justice Kavanaugh touched on this a little bit—and I believe the federal prosecutors -- the former prosecutor’s brief touched on this some as well—where a criminal defendant whose case was very weak and so warranted dismissal might be blocked from bringing a civil lawsuit. But a defendant whose case went all the way through trial was found guilty and then had his conviction overturned on direct appeal would be able to bring a civil case. And so, in the second scenario, the criminal case was much stronger against him, and yet, he would be able to bring a civil lawsuit. Whereas, in the first scenario, the case could be very weak, and yet, the defendant would be precluded from bringing a civil case. So that creates a strange, illogical disparity of treatment under the law—under the indications of innocence rule that the Second Circuit and other circuits adopted.

 

Marc Levin:  Well, Vincent, let me give you a chance to respond to that and then, secondly, answer the question of what could Mr. Thompson -- would he ever be able to pursue any remedy had the Court majority held the other way?

 

Vincent Stark:  Yeah. Let me see if I can do that in reverse order because it will be fast. Yes, I think so. If the dissent had won -- you said, “If my side had won out.” I want to be clear, if the dissent had won, I would have lost on that theory, too. I lose either way. But if the dissent had won out, yeah. And Justice Alito addresses this in Section 1A of his brief. He says, “You can do an unreasonable seizure theory under the Fourth Amendment Section 1983.” He says, “There, you need a seizure that’s unreasonable,” which, in the case of a full arrest, is without probable cause. And in a way, this is -- actually would be easier for a defendant -- a plaintiff to bring in certain circumstances because, in some circumstances, you can have a seizure that is short of a full-blown arrest like in a Terry stop situation or something of that nature.

 

It’s one of the things I talk about with our legal students sometimes is, “How do you sue somebody when you’re stopped briefly for a few minutes?” I guess you can, but what are the damages? Justice Alito, in some ways, would actually create a rule that would be even easier, and I think it would be preferable from my perspective—and I’m guessing from the perspective of most prosecutors—because it would take us entirely out of it. We would have nothing to do with the arrest. It would put it right where it should be on the person who’s doing the arrest.

 

As far as that first question goes, I mean, obviously, that’s our concern is, “How does this affect prosecutors?” Would it incentivize a prosecutor to continue a prosecution that he knows there is no probable cause for? I think the answer to that is no—certainly no prosecutors I know; certainly no prosecutors I would want to know. That would be a clear violation of our ethics. And I don’t think that we need a civil suit to stop us from doing that. We have our ethics boards in every state that we could have a license all day, but also, I do think we’re typically pretty ethical people.

 

What I’m actually a lot more concerned about is, does it incentivize us to not dismiss cases against people who we think are guilty where there’s probable and, frankly, where the evidence is pretty good. And that’s a lot of what I spoke about in my amicus. Sort of pulling the curtain back here -- I had a whole extra few paragraphs in my first draft that we decided to take out where I kind of gamed out that possibility of, “Well, what happens if the affirmative indications of innocence standard does not win the day?” And in my mind, I said, “Well, we might dismiss fewer cases,” which would have some bad consequences for us in the sense that we’re already overworked, and we already have not enough resources. And sometimes, we’re dismissing cases just as part of triage. It’s also not so good for defendants who -- maybe we’re dismissing lower-level crimes, I would think, and -- or two, maybe we’re insisting, in certain circumstances, on them waiving a future civil action, which is not unethical. I looked into that very hard for this brief. It’s not unethical. It’s, I do think, ethically fraught, however. And it’s certainly uncomfortable, and it’s certainly, I don’t think, something that any prosecutor [inaudible 0:31:24] for a possible civil case in the future.

 

That said, what I was trying to grapple with is, going forward, do you have to, to some degree? If you think that there’s a possibility -- remember every time we dismiss something now, it’s technically possibly a federal case. And if you know that you don’t believe the police have done anything wrong, and just standing up in court and saying, “I’m dismissing this to be a nice guy. There’s probable cause in my view,” isn’t enough to stop it anymore because the affirmative indication of innocence doesn’t matter. And our first obligation, according to our ethics, says that we have a duty to the truth. Is it good for justice to dismiss a case knowing that that could result in a federal lawsuit?

 

Now, granted to Ms. Miller’s point, yeah, it’s not going to be a lawsuit that has much chance of success, but you can still get through the courthouse door. Maybe they’re not going to be able to prove that there wasn’t probable cause, but for the same reason that nobody likes being accused of a crime where there’s not probable cause, nobody likes getting sued when there’s not enough to really get past the pleading stages. It costs the cities money. It ties up police that might have to go and testify or be deposed. It is going to probably result in more attorneys having to be hired by cities, and ultimately, if it’s an edge case, there’s going to be some sort of small settlement.

 

What is our duty to justice? Do we have to play a little defense or a little bit of goalie? And I don’t know the answer to that. All of us in DAASNY didn’t know the answer to that either. And I want to say, I don’t speak for -- really, I don’t speak for DAASNY. I don’t even speak for the DA in Albany County when I say that other than to say, “I think we all have to really consider that question really seriously now, going forward.” There’s one of us -- one DA in Albany County. There’s 62 in the state of New York. There’s something close to 5,000 nationwide. And if you want to talk about a patchwork, I think there might be a patchwork. And that’s going to be the ultimate question is, “Do the courthouse gates flood open? Is there going to be a lot more litigation?” If there isn’t, this will be a big nothing burger. And if there is a lot more litigation, it will change how prosecutors do business for better or for worse.

 

Marc Levin:  Let me just follow up. So at the beginning -- is what you’re saying then, if the dissent by Justice Alito had prevailed, that you think that someone like Mr. Thompson could have pursued a wrongful seizure claim against the police but that he couldn’t have pursued the malicious prosecution claim—that someone who had the case dropped like he did would not be able to pursue a malicious prosecution claim against prosecutors?

 

Vincent Stark:  Well, certainly not against prosecutors. I don’t think they can pursue it against prosecutors anyway because of the absolute immunity that’s the Imbler case. But yeah, as I read Justice Alito’s dissent, he didn’t believe in the malicious prosecution Fourth Amendment tort at all. He had a different theory under which a Fourth Amendment tort could be pursued pursuant to Section 1983. In some ways, I actually think that it was -- one, it fits the Fourth Amendment a little bit better, and two, I actually think it’s a little bit easier for plaintiffs to make out.

 

Marc Levin:  Well, we have it open for questions, so let’s turn to that in just a minute as soon as we get some audience -- we already have some questions and comments. But I wanted to switch back to you, Marie, to respond to that, but also, I had a question potentially for both of you, which is, what would happen when there’s multiple -- let’s say there was someone pulled over for speeding for something and then there was another charge, and only they were guilty of the speeding but the other was -- evidence was fabricated by law enforcement or exculpatory evidence was hidden by prosecutors. So there’s some wrongdoing on the other charge, but they were guilty of the more minor charge. How would this play out?

 

Marie Miller:  I think I can kind of respond to both at the same time. One thing that I think kind of got glossed over a little bit in the Court’s opinion was the requirement that the unlawful initiation of charges has to be proven to have caused a seizure. That causation element is also a requirement that the civil plaintiff will have to overcome. And so, in Larry Thompson’s case, he will have to show that he was detained because legal process was begun against him and that that legal process was based on the fabrication of the story by the police officer. So that is another huge hurdle for civil plaintiffs to overcome.

 

And for your example about if there are multiple charges and one is dismissed but another is not, if I’m understanding your hypothetical correctly -- again, there’s going to have to be this causation element shown where a person was seized because of the unlawful initiation of legal process, meaning that the charge was brought without probable cause and that because of that, the now civil plaintiff was seized. So regardless of what charges are brought, that causation is going to have to be shown.

 

Marc Levin:  Vincent, did you want to address that, too?

 

Vincent Stark:  Yeah, no, just to jump in on the idea of a seizure -- I think it was one of the background issues in the case that was certainly glossed over here, and I think it was an interesting issue from our perspective. We didn’t brief it, but what exactly constitutes a seizure for the constitutional question? Sometimes we get appearance tickets in New York. I imagine there’s something similar in other states. Okay. So then you show up. You’re arraigned. You’re released on your own recognizance. Well, the court has jurisdiction over you. You’re in custody of the court in some theoretical action. Are you seized? You were processed at some point. They’ll take your fingerprints. Were you seized during that part of the process? If that’s not enough, being released under your own recognizance, if the Court sets nominal bail of a dollar or ten dollars, are you in custody of the court and therefore in custody at that point? What does it mean to be seized for the purposes of the Fourth Amendment? Typically, you only need a show of force for Fourth Amendment seizure. So exactly what that would mean in this context, if it’s a pro forma seizure, I’m not quite sure. And that was glossed over. And it was an interesting question that I don’t think was fully presented squarely in the case, but like so many Supreme Court cases, this one’s going to have litigation for years to come.

 

Marc Levin:  Well, we’ve got a couple of really interesting questions from audience members here. So let me turn to that. This is from Andrew Yurcho (sp). “Does the panel think prosecutors intentionally do not address the matter of innocence when dismissing a case in order to attempt to avoid the malicious prosecution problem?”

 

Marie Miller:  I can start. I don’t know that we think prosecutors do that, but from my perspective, the indications of innocence rule at least incentivized prosecutors to consider it and that that was a problem with the indications of innocence rule.

 

Marc Levin:  Vincent, I know you addressed earlier the ethical obligations of prosecutors, so this does relate to that.

 

Vincent Stark:  It sort of relates. I mean, I certainly don’t. I’ll probably -- maybe I’ll get in trouble for saying this. I would say, if you poll most of the prosecutors in this building, they probably haven’t heard of Thompson v. Clark even though I wrote the amicus in the case. Right? I think that, for the most part, they’re staying within their lane on criminal prosecution and aren’t really all that much aware of civil prosecution and what it entails. So, to the extent that they’re blissfully unaware of what occurs later, absolutely not. To the extent that there are prosecutors who are aware of it, I would certainly hope not. I don’t think that they would do that to avoid it. If anything, ethically, most of the time—again, because most of the time we’re dismissing for reasons that have absolutely nothing to do with the strength of the case—it would behoove them to put on the record exactly why they’re dismissing the case. I think most of the time, prosecutors don’t put on the record why they’re dismissing the case because if they did that in every single case, they’d be in court for a few more hours.

 

Marc Levin:  Okay. We have a kind of very technical, but I think thought-provoking question here from Lawrence Joseph. He notes Mr. Thompson was arrested but never indicted. Does the presence of an indictment enter the analysis? And if so, is there any inconsistency with Kaley v. US, 571 U.S. 320 from 2014 regarding the impermissibility of undermining a grand jury’s indictment? It’s a bit of a mouthful. But how does indictment or not indictment affect the analysis?

 

Marie Miller:  Yeah. I don’t think it really would affect the analysis. I haven’t thought about it. So this is just my initial thoughts. But an indictment would, under the Supreme Court’s so-far suggestions, that would be the start of legal process. And so, if a civil lawsuit was undermining the initiation of legal charges -- of criminal charges through an indictment, that would be this kind of so-called malicious prosecution claim. And I think all the same requirements would exist whether legal process is started through an indictment, through a judge’s finding of probable cause, or through an information and just a prosecutor bringing charges. Any one of those is the initiation of legal proceedings. And so, if a person is seized pursuant to those legal proceedings, that is what gives rise to this unlawful seizure claim.

 

Marc Levin:  Oh, Vincent, did you want to comment on that one?

 

Vincent Stark:  No, I think I agree with Marie on that one.

 

Marc Levin:  Yeah, and I guess one of the other things that occurs to me is there seems to be this question about the malicious prosecution tort. Maybe we should discuss the history and basis for that. And I assume that instances of people prevailing on that are very rare. But on the other hand, certainly, you can imagine -- and also maybe talk about what is the relationship between looking at this versus immunity for judges or even legislatures. But are there limits to that immunity from the standpoint of -- some of you may remember, in Pennsylvania, this judge who took bribes from interest in terms of the juvenile lockups and then sent kids to them.

 

And if a prosecutor -- again, this is certainly – one would think this is – it’s certainly very rare, but if a prosecutor either fabricated evidence or – there have been cases, certainly, I’m aware of, where prosecutors did withhold intentionally even exculpatory evidence or literally made things up. If that type of thing does happen, if you don’t believe in the malicious prosecution tort, then would you argue the remedies are professional discipline and perhaps disbarment or that sort of thing? So I guess I think it might be helpful to just get each of your perspectives on what the scope of the malicious prosecution tort should be or is and whether that should exist as a legitimate tort.

 

Vincent Stark:  I’m happy to go first on this one. So first, I want to be very clear. I’m not saying I don’t necessarily believe in the malicious prosecution tort, and maybe that I don’t even necessarily believe in it as a legitimate constitutional claim. There have been suggestions that maybe the malicious prosecution tort would fit more squarely within due process under the Fourteenth Amendment. However, when I read—and then now reread, preparing for this panel—Justice Alito’s dissent, I have to say, I mean, he really makes a pretty strong argument, saying it doesn’t really fit squarely within the Fourth Amendment. As far as applying it to prosecutors, again, I think this goes back to the history of prosecutors. The malicious prosecution tort comes – exists prior to prosecutors existing or at least public prosecutors existing. And so it’s a tort that existed prior to the idea of absolute immunity for prosecutors, which exists at -- I think the first time I’ve seen it is 1895 -- this idea of prosecutors acting as quasi-judicial officials.

 

I do think that is a very, very important doctrine. And I do think it’s one that actually is very helpful to the defense, believe it or not. It allows prosecutors to act without fear and without favor. Right? Those are the terms we always say -- that we want to do is act without fear and without favor. If we’re always looking over our shoulders to say, “Well, if I dismiss this case, I might get sued, because well, that’s essentially laying down and saying there wasn’t probable cause in the first place, or the case couldn’t be proven in the first place, or if I lose this case, I could get sued.”

 

That actually cabins our discretion on both sides. One, we’re not going to take cases that are a little bit harder to prove, even if we’re convinced that the person committed that crime. On the other side, we’re not going to be dismissing easy cases because it opens us up to the same liability that it opens these cops up to who are arresting folks based on probable cause because, again, nobody wants to get sued, and nobody wants to get sued ten times a week, which is what would happen to prosecutors I think, especially with what prosecutors are paid certainly here in New York and nationwide, as I understand it. I think you’d see fewer prosecutors. I think you’d see fewer good prosecutors, and I think you’d see fewer cases being -- especially fewer harder cases being taken on.

 

I worry especially about domestic violent cases in that context because those are the cases that I see the most that are apt to fall apart, where the police show up, and there’s a victim who has the black eye and swears up and down here’s what happened. And then, a week and a half later, we’re sending a Brady letter because the victim has recanted. The police, the prosecutors are all going to be thinking twice if there’s no qualified immunity, no absolute immunity. In our case, we’re all going to be thinking twice about, “Okay. Do I even initiate these charges if there’s a malicious prosecution tort that’ll get me sued for dismissing it or sending a Brady letter?”

 

I agree with Marie quite strongly that even though we have our ethical obligations, and even though I think, almost to a man, we take them seriously -- the reason you hear about those prosecutors who are fabricating evidence or withholding evidence or really falling down on their ethics is because they’re the exception, not the rule. But I agree strongly with Marie that we should be encouraging what we want prosecutors to do and not discouraging. I actually think that the absolute immunity allows us to do that in most cases.

 

Marie Miller:  I’ll respond a little bit. I think, in this case, and in a lot of the circuit cases addressing these kinds of claims, the term malicious prosecution is used quite loosely to refer to what I see as two different types of claims. We have one claim like Larry Thompson’s that is really challenging an unlawful seizure that was caused by the wrongful initiation of charges. And then there’s another kind of claim that only targets that unlawful initiation of charges or charges being brought without probable cause. And that other kind of claim, I think, is the one with a huge question mark. Larry Thompson’s case pretty well covers the kind of claim that’s based on an unlawful seizure, but again, these two kinds of claims are just called malicious prosecution claims by the courts, generally, and litigants as well.

 

But I think it would be helpful to be really precise with how we describe these claims where Larry Thompson’s is an unlawful seizure claim -- a claim for unlawful seizure pursuant to legal process, whereas the other kind of malicious prosecution claim is simply targeting the legal process itself, regardless of any seizure. And it’s that kind of case that -- perhaps the due process clause is a better house for it because it doesn’t depend on a seizure. And to the extent prosecutorial immunity historically would not apply to malicious -- common law malicious prosecution claims, that’s a reason to question whether prosecutorial immunity should apply to that kind of constitutional claim, possibly under the due process clause. But again, these are just questions that are now coming to the forefront, whereas before this case, I think many courts and litigants were just loosely calling multiple kinds of claims malicious prosecution torts. And it would be helpful to kind of separate them out. And I think this case will help to do that.

 

Marc Levin:  Well, we’re getting close to the end of our time here. But I wanted to certainly invite each of you to make final comments and also wanted to kind of put the question -- getting back down to the plaintiff, Mr. Thompson himself, what do you envision transpiring with this case being remanded? And, I think, going back to your comments, Marie—which I assume you would agree with, Vincent—that if, in fact, it’s a situation where his only remaining claim is malicious prosecution, then obviously there’s a very high bar to establish that given the immunity which is based on some really good policy reasons why we would only want prosecutors to be liable for intentional misconduct at a minimum and not simply making a minor error or something. And I guess that will -- the factual development will continue on that. But I guess there’s a decent chance that—or maybe even much more than that—that even though Mr. Thompson ends up winning a pretty significant Supreme Court case, he may sadly, I think, given to all of his -- all he was put through that he may end up walking away without any compensation.

 

So I’m just hoping each of you could -- and again, regardless of like the legal or policy merits, just, obviously, from a human perspective, if there’s a situation where maybe there should be a compensation fund. Maybe there’s another remedy that is not even one involving litigation for someone regardless of the degree to which a prosecutor or judge or somebody else or police is at fault—that somebody had real injuries, especially in a case where somebody might have been seriously injured, which wasn’t the case with Mr. Thompson -- but how do we kind of -- how do you all envision this unfolding and particularly consider also if, in fact, someone in Mr. Thompson’s shoes had had disabling injuries, for example.

 

Marie Miller:  I’m happy to go for a minute.

 

Marc Levin:  Sure.

 

Marie Miller:  Larry Thompson is going to have an uphill battle on remand. He’s going to have to prove the lack of probable cause. He’s going to have to prove that the police officer’s report caused him to be unreasonably seized. And I think there’s -- I think there’s an open question about whether he’s going to have to prove malice, as well. That was a requirement of common law malicious prosecution. As far as what other kinds of remedies could he seek? He could have, I believe, sought some damages remedy under New York state law. I don’t believe he pursued possible claims that he had. And in general, litigants can, of course, bring parallel state and federal claims. And they should also be looking to state constitutional law. Even if the Fourth Amendment doesn’t house this kind of claim, perhaps the state constitution would. And I don’t know if many state high courts have addressed the question of whether their similar proceedings has or would support this kind of claim under other -- under their state civil rights statutes as well—enabling statutes—or not. But it’s a place to look for ways to provide remedies, and state legislatures can provide them, I believe, more easily than congress.

 

Vincent Stark:  Well, thank you again for having me, Mr. Levin. Thank you to The Federalist Society. I said at the beginning before we started, this is sort of a bucket list item for me. So it’s been really fun. I think yeah. It’s going to be an uphill battle, especially with qualified immunity. Maybe it wasn’t clearly established before this case. Although I think he [inaudible 0:55:03] since he’s the plaintiff here. Obviously, he can still bring it even against the police officer. The police officer instituted the charges by filing those charges. I’m not sure that the state remedy would help him. It all depends on whether or not he preserved his state remedy by filing a notice of claim under New York law. I wouldn’t know. It wasn’t mentioned in the case law or in the case itself. And whether or not he did that, there’s very tight procedural restrictions here in New York on something like that.

 

But more broadly, I think I agree with the premise of your question anyway, that we do need to do a better job of addressing these sorts of issues. I actually analogize in my mind with the exclusionary rule. We’re the only country that has an exclusionary rule. And again, one of the things I always challenge my paralegal students on is, “Okay. We’ve got the exclusionary rule. The police search your house illegally, and they don’t find anything. What’s your remedy?” Right? I think that maybe what we should be doing is punishing bad cops. I’m not saying these cops are bad necessarily. That remains to be seen. But we should be punishing bad cops and maybe not having -- maybe Section 1983 has outlived its usefulness. Maybe there’s a better way to do it. I’m not quite sure what it is, but I don’t know that Section 1983 is the way to do it.

 

Marc Levin:  Well, it looks like we’re hitting the bottom of the hour here. So I’m going to send it back to Jenny. And I want to thank everyone and encourage all of you to tune in to future Federalist Society Teleforums.

 

Jenny Mahoney:  Yes. Thank you. And I just want to echo, on behalf of The Federalist Society, thank you to our experts for the benefit of their valuable time and expertise today. And I want to thank also our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.