Thompson v. Clark

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 36–60
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 4, 2022
REBECCA A. WOMELDORF
reporter of decisions
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the bound volume is published. Users are requested to notify the Reporter
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36 OCTOBER
TERM, 2021
Syllabus
THOMPSON v. CLARK et al.
certiorari
to the united states court of appeals for
the second circuit
No. 20–659. Argued October 12, 2021—Decided April 4, 2022
In January 2014, petitioner Larry Thompson was living with his fancée
(now wife) and their newborn baby in an apartment in Brooklyn, New
York. Thompson's sister-in-law, who apparently suffered from a mental
illness, called 911 to report that Thompson was sexually abusing the
baby. When Emergency Medical Technicians arrived, Thompson de-
nied that anyone had called 911. When the EMTs returned with four
police offcers, Thompson told them that they could not enter without
a warrant. The police nonetheless entered and handcuffed Thompson.
EMTs took the baby to the hospital where medical professionals exam-
ined her and found no signs of abuse. Meanwhile, Thompson was ar-
rested and charged with obstructing governmental administration and
resisting arrest. He was detained for two days before being released.
The charges against Thompson were dismissed before trial without any
explanation by the prosecutor or judge. After the dismissal, Thompson
fled suit under 42 U. S. C. § 1983, alleging several constitutional viola-
tions, including a Fourth Amendment claim for malicious prosecution.
To maintain that Fourth Amendment claim under § 1983, a plaintiff
such as Thompson must demonstrate, among other things, that he ob-
tained a favorable termination of the underlying criminal prosecution.
To meet that requirement, Second Circuit precedent required Thompson
to show that his criminal prosecution ended not merely without a con-
viction, but also with some affrmative indication of his innocence.
See Lanning v. Glens Falls, 908 F. 3d 19, 22. The District Court,
bound by Lanning, held that Thompson's criminal case had not ended
in a way that affrmatively indicated his innocence because Thomp-
son could not offer any substantial evidence to explain why his case
was dismissed. The Second Circuit affrmed the dismissal of Thomp-
son's claim. This Court granted certiorari to resolve a split among
the Courts of Appeals over how to apply the favorable termination re-
quirement of the Fourth Amendment claim under § 1983 for malicious
prosecution.
Held: To demonstrate a favorable termination of a criminal prosecution
for purposes of the Fourth Amendment claim under § 1983 for malicious
prosecution, a plaintiff need not show that the criminal prosecution
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37
Syllabus
ended with some affrmative indication of innocence. A plaintiff need
only
show that his prosecution ended without a conviction. Thompson
has satisfed that requirement here. Pp. 42–49.
(a) To determine the elements of a constitutional claim under § 1983,
this Court's practice is to frst look to the elements of the most
analogous tort as of 1871 when § 1983 was enacted, so long as doing
so is consistent with “the values and purposes of the constitutional right
at issue.” Manuel v. Joliet, 580 U. S. 357, 370. Here, as most of the
Courts of Appeals to consider the question have determined, the most
analogous tort to this Fourth Amendment claim is malicious prosecution.
Pp. 42–44.
(b) In accord with the elements of the malicious prosecution tort, a
Fourth Amendment claim under § 1983 for malicious prosecution re-
quires the plaintiff to show a favorable termination of the underlying
criminal case against him. The parties to this case, as well as the lower
courts, disagree about what a favorable termination entails, i. e., is it
suffcient to show that Thompson's prosecution ended without a convic-
tion or must he also show that his prosecution ended with some affrma-
tive indication of innocence? To resolve that disagreement, the Court
looks to American malicious prosecution tort law as of 1871. At that
time, most American courts agreed that the favorable termination ele-
ment of a malicious prosecution claim was satisfed so long as the prose-
cution ended without a conviction. A plaintiff could maintain a mali-
cious prosecution claim when, for example, the prosecutor abandoned
the criminal case or the court dismissed the case without providing a
reason.
The American tort-law consensus as of 1871 did not require a plaintiff
in a malicious prosecution suit to show that his prosecution ended with
an affrmative indication of innocence, and this Court similarly construes
Thompson's Fourth Amendment claim under § 1983 for malicious prose-
cution. Doing so is consistent with “the values and purposes” of the
Fourth Amendment. Manuel, 580 U. S., at 370. Questions concerning
whether a criminal defendant was wrongly charged, or whether an indi-
vidual may seek redress for a wrongful prosecution, cannot reasonably
depend on whether the prosecutor or court happened to explain why
charges were dismissed. And requiring a plaintiff to show that his
prosecution ended with an affrmative indication of innocence is not nec-
essary to protect offcers from unwarranted civil suits, as offcers are
still protected by the requirement that the plaintiff show the absence of
probable cause and by qualifed immunity. Pp. 44–49.
794 Fed. Appx. 140, reversed and remanded.

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38 TH
OMPSON v. CLARK
Syllabus
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C
. J., and Breyer, Sotomayor, Kagan, and Barrett, JJ., joined.
Alito, J., fled a dissenting opinion, in which Thomas and Gorsuch, JJ.,
joined, post, p. 49.
Amir H. Ali argued the cause for petitioner. With him
on the briefs was Devi M. Rao.
Jonathan Y. Ellis argued the cause for the United States
as amicus curiae supporting petitioner. With him on the
brief were Acting Solicitor General Prelogar, Acting Assist-
ant Attorney General Boynton, Assistant Attorney General
Clarke, Deputy Solicitor General Gannon, Michael R. Hus-
ton, Barbara L. Herwig, Erin H. Flynn, and Brant S.
Levine.
John D. Moore argued the cause for respondents. With
him on the brief were Richard Dearing, Devin Slack, and
Melanie T. West.*
*Briefs of amici curiae urging reversal were fled for the American
Civil Liberties Union et al. by Marisa C. Maleck, Joshua N. Mitchell,
Clark M. Neily III, Jay R. Schweikert, John W. Whitehead, David D.
Cole, and Christopher T. Dunn; for APA Watch by Lawrence J. Joseph;
for the Boston University Center for Antiracist Research by Angela On-
wuachi-Willig; for the Constitutional Accountability Center by Elizabeth
B. Wydra, Brianne J. Gorod, and Brian R. Frazelle; for Current and For-
mer Prosecutors et al. by Mary B. McCord, Kelsi Brown Corkran, and
Amy L. Marshak; for Federal Courts Scholars by Rakesh N. Kilaru; for
the Home School Legal Defense Association by John J. Bursch, Jacob
P. Warner, and Michael P. Farris; for the Institute for Justice by Marie
Miller and Patrick Jaicomo; for the Law Enforcement Action Partnership
by Matthew D. Slater; for the NAACP Legal Defense & Educational Fund,
Inc., by Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital, Ashok Chan-
dran, and Mahogane D. Reed; for the National Police Accountability Proj-
ect et al. by Charles A. Rothfeld, Andrew J. Pincus, Paul W. Hughes,
Michael B. Kimberly, Eugene R. Fidell, and Tricia J. Rojo Bushnell; and
for National, State, and Local Criminal Defense, Civil Rights, and Racial
Justice Organizations by Jon Loevy and Steve Art.
Briefs of amici curiae urging affrmance were fled for the City of Chi-
cago, Illinois, et al. by Myriam Zreczny Kasper, Julian N. Henriques, Jr.,
and Lisa Soronen; and for the District Attorneys Association of the State
of New York by Vincent Stark.

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39
Opinion of the Court
Justice Kavanaugh delivered the opinion of the Court.
Larry
Thompson was charged and detained in state crimi-
nal proceedings, but the charges were dismissed before trial
without any explanation by the prosecutor or judge. After
the dismissal, Thompson alleged that the police offcers who
initiated the criminal proceedings had “maliciously prose-
cuted” him without probable cause. App. 33–34. Thomp-
son sued and sought money damages from those offcers in
federal court. As relevant here, he advanced a Fourth
Amendment claim under 42 U. S. C. § 1983 for malicious
prosecution.
To maintain that Fourth Amendment claim under § 1983,
a plaintiff such as Thompson must demonstrate, among other
things, that he obtained a favorable termination of the un-
derlying criminal prosecution. Cf. Heck v. Humphrey, 512
U. S. 477, 484, and n. 4 (1994). This case requires us to fesh
out what a favorable termination entails. Does it suffce for
a plaintiff to show that his criminal prosecution ended with-
out a conviction? Or must the plaintiff also demonstrate
that the prosecution ended with some affrmative indication
of his innocence, such as an acquittal or a dismissal accompa-
nied by a statement from the judge that the evidence was
insuffcient?
We conclude as follows: To demonstrate a favorable termi-
nation of a criminal prosecution for purposes of the Fourth
Amendment claim under § 1983 for malicious prosecution, a
plaintiff need only show that his prosecution ended without
a conviction. Thompson satisfed that requirement in this
case. We therefore reverse the judgment of the U. S. Court
of Appeals for the Second Circuit and remand for further
proceedings consistent with this opinion.
I
Larry Thompson lived with his fancée (now wife) and
their newborn baby girl in an apartment in Brooklyn, New
York. In January 2014, Thompson's sister-in-law was also
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40 TH
OMPSON v. CLARK
Opinion of the Court
staying there. The sister-in-law apparently suffered from a
ment
al illness. One day that January, the sister-in-law
called 911 and claimed that Thompson was sexually abusing
his one-week-old baby daughter. Two Emergency Medical
Technicians promptly responded. When the EMTs arrived
at the family's apartment, Thompson asked the EMTs why
they were there and denied that anyone had called 911. The
EMTs left and informed the police of the situation.
The EMTs and four police offcers then returned to the
apartment. When they arrived, Thompson told them that
they could not come in without a warrant. The police off-
cers nonetheless entered and, after a brief scuffe, handcuffed
Thompson. The EMTs followed the offcers into the apart-
ment and examined the baby. After fnding red marks on
the baby's body, the EMTs took the baby to the hospital for
evaluation. The marks turned out to be a case of diaper
rash. The medical professionals found no signs of abuse.
Meanwhile, the police offcers arrested Thompson for re-
sisting their entry into the apartment. Thompson was
taken to a local hospital and then to jail. While Thompson
was in custody, one of the police offcers prepared and fled
a criminal complaint charging Thompson with obstructing
governmental administration and resisting arrest. Thomp-
son remained in custody for two days. A judge then re-
leased him on his own recognizance.
Before trial, the prosecution moved to dismiss the charges,
and the trial judge in turn dismissed the case. The prose-
cutor did not explai n why she sought to dismiss the
charges, nor did the trial judge explain why he dismissed
the case.
After the criminal prosecution ended, Thompson brought
suit for damages under 42 U. S. C. § 1983 against the police
offcers who had arrested and charged him. Thompson al-
leged several constitutional violations, including a Fourth
Amendment claim for “malicious prosecution.” App. 33.
Thompson asserted that the offcers “maliciously prosecuted”
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41
Opinion of the Court
him and “subjected him to an unlawful, illegal and excessive
detenti
on” in violation of his Fourth Amendment rights.
Id., at 34.
To prevail on that claim under Second Circuit precedent,
Thompson had to show that his criminal prosecution ended
not merely without a conviction, but also with some affrma-
tive indication of his innocence. See Lanning v. Glens
Falls, 908 F. 3d 19, 22 (2018). Thompson could not put forth
any substantial evidence that would explain why the prose-
cutor had moved to dismiss the charges or why the trial
court had dismissed the charges. Therefore, the District
Court ruled that Thompson's criminal case had not ended in
a way that affrmatively indicated his innocence. The Dis-
trict Court granted judgment to the defendant offcers on
that Fourth Amendment claim. Notably, the District Court
also opined that the relevant Second Circuit precedent “can
and should be changed” to say that a favorable termination
occurs so long as the prosecution ends without a conviction.
364 F. Supp. 3d 178, 181, 196–197 (EDNY 2019). On appeal,
however, the U. S. Court of Appeals for the Second Circuit
adhered to its precedent in Lanning and affrmed the dis-
missal of Thompson's Fourth Amendment claim. 794 Fed.
Appx. 140 (2020).
The Courts of Appeals have split over how to apply the
favorable termination requirement of the Fourth Amend-
ment claim under § 1983 for malicious prosecution. In addi-
tion to the Second Circuit, some other Courts of Appeals
have held that a favorable termination requires some af-
frmative indication of innocence. See, e. g., Kossler v. Cri-
santi, 564 F. 3d 181, 187 (CA3 2009) (en banc); Cordova v.
Albuquerque, 816 F. 3d 645, 649 (CA10 2016). By contrast,
the Eleventh Circuit has held that a favorable termination
occurs so long as the criminal prosecution ends without a
conviction. See Laskar v. Hurd, 972 F. 3d 1278, 1282 (2020).
This Court granted certiorari to resolve the split. 592
U. S. ––– (2021).
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42 TH
OMPSON v. CLARK
Opinion of the Court
II
A
In
1871, Congress passed and President Grant signed the
Civil Rights Act of 1871. Section 1 of that Act, now codifed
at 42 U. S. C. § 1983, created a species of federal tort liability
for individuals to sue state and local offcers for deprivations
of constitutional rights.
In this case, Thompson sued several police offcers under
§ 1983, alleging that he was “maliciously prosecuted” without
probable cause and that he was seized as a result. App. 33–
34. He brought a Fourth Amendment claim under § 1983
for malicious prosecution, sometimes referred to as a claim
for unreasonable seizure pursuant to legal process. This
Court's precedents recognize such a claim. See Manuel v.
Joliet, 580 U. S. 357, 363–364, 367–368 (2017); Albright v. Oli-
ver, 510 U. S. 266, 271 (1994) (plurality opinion); see also id.,
at 290–291 (Souter, J., concurring in judgment). And follow-
ing this Court's precedents, the District Courts and Courts
of Appeals have decided numerous cases involving Fourth
Amendment claims under § 1983 for malicious prosecution.
See, e. g., Pitt v. District of Columbia, 491 F. 3d 494, 510–511
(CADC 2007) (“[N]early every other Circuit has held that
malicious prosecution is actionable under the Fourth Amend-
ment to the extent that the defendant's actions cause the
plaintiff to be `seized' without probable cause”); Kossler, 564
F. 3d, at 186–187; Sykes v. Anderson, 625 F. 3d 294, 308–309
(CA6 2010); Durham v. Horner, 690 F. 3d 183, 188 (CA4
2012); Myers v. Koopman, 738 F. 3d 1190, 1194 (CA10 2013);
Winfrey v. Rogers, 901 F. 3d 483, 491–493 (CA5 2018); Lan-
ning, 908 F. 3d, at 28; Jordan v. Waldoboro, 943 F. 3d 532,
545 (CA1 2019); Williams v. Aguirre, 965 F. 3d 1147, 1157
(CA11 2020).
1
1
Thompson also brought a Fourth Amendment claim for unreasonable
seizure (labeled a false arrest claim), based on his initial arrest before
charges were fled against him. But the jury ruled against him on the
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Opinion of the Court
The narrow dispute in this case concerns one element of
the
Fourth Amendment claim under § 1983 for malicious
prosecution. To determine the elements of a constitutional
claim under § 1983, this Court's practice is to frst look to the
elements of the most analogous tort as of 1871 when § 1983
was enacted, so long as doing so is consistent with “the val-
ues and purposes of the constitutional right at issue.” Man-
uel, 580 U. S., at 370; see also Nieves v. Bartlett, 587 U. S.
–––, ––– (2019); Heck, 512 U. S., at 483.
2
Here, as most of the Courts of Appeals to consider the
question have determined, the most analogous tort to this
Fourth Amendment claim is malicious prosecution. See
Kossler, 564 F. 3d, at 186; Sykes, 625 F. 3d, at 308–309; Dur-
ham, 690 F. 3d, at 188; Myers, 738 F. 3d, at 1194; Lanning,
908 F. 3d, at 28; Jordan, 943 F. 3d, at 545. That is because
the gravamen of the Fourth Amendment claim for malicious
prosecution, as this Court has recognized it, is the wrongful
initiation of charges without probable cause. And the
wrongful initiation of charges without probable cause is like-
wise the gravamen of the tort of malicious prosecution.
In American courts as of 1871, the malicious prosecution
tort generally allowed recovery against an individual who
had initiated or caused the initiation of criminal proceedings
despite having “no good reason to believe” that criminal
charges were “justifed by the facts and the law.” T. Cooley,
Law of Torts 180 (1880) (Cooley); see also 1 F. Hilliard, The
merits of that claim. That claim is not before us, and we therefore do not
consider it.
2
Because this claim is housed in the Fourth Amendment, the plaintiff
also has to prove that the malicious prosecution resulted in a seizure of
the plaintiff. See Manuel v. Joliet, 580 U. S. 357, 365–366 (2017). It has
been argued that the Due Process Clause could be an appropriate analyti-
cal home for a malicious prosecution claim under § 1983. See Albright v.
Oliver, 510 U. S. 266, 281, 286 (1994) (Kennedy, J., concurring in judgment).
If so, the plaintiff presumably would not have to prove that he was seized
as a result of the malicious prosecution. But we have no occasion to con-
sider such an argument here.
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OMPSON v. CLARK
Opinion of the Court
Law of Torts or Private Wrongs 412–414 (1866) (Hilliard).
The
malicious prosecution tort protected against “injury
to the person, as connected with false imprisonment” and
against “a wrong to character or reputation.” Id., at 412
(emphasis deleted).
American courts described the elements of the malicious
prosecution tort as follows: (i) the suit or proceeding was
“instituted without any probable cause”; (ii) the “motive in
instituting ” the suit “was malicious,” which was often de-
fned in this context as without probable cause and for a pur-
pose other than bringing the defendant to justice; and (iii)
the prosecution “terminated in the acquittal or discharge of
the accused.” Cooley 181.
3
That third requirement—a favorable termination of the
underlying criminal prosecution—is the focus of the parties'
dispute in this case.
B
In accord with the elements of the malicious prosecution
tort, a Fourth Amendment claim under § 1983 for malicious
prosecution requires the plaintiff to show a favorable termi-
nation of the underlying criminal case against him. The fa-
vorable termination requirement serves multiple purposes:
(i) it avoids parallel litigation in civil and criminal proceed-
ings over the issues of probable cause and guilt; (ii) it pre-
cludes inconsistent civil and criminal judgments where a
claimant could succeed in the tort action after having been
convicted in the criminal case; and (iii) it prevents civil suits
from being improperly used as collateral attacks on criminal
proceedings. Cf. Heck, 512 U. S., at 484–485; see also Mc-
Donough v. Smith, 588 U. S. –––, ––– (2019).
The parties to this case disagree about what a favorable
termination entails. In particular, does it suffce for a plain-
3
We need not decide whether a plaintiff bringing a Fourth Amendment
claim under § 1983 for malicious prosecution must establish malice (or
some other mens rea) in addition to the absence of probable cause.
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Opinion of the Court
tiff to show that his prosecution ended without a conviction?
Or
must the plaintiff also show that his prosecution ended
with some affrmative indication of innocence, such as an ac-
quittal or a dismissal accompanied by a statement from the
judge that the evidence was insuffcient?
To resolve that disagreement, we must look to American
malicious prosecution tort law as of 1871. See Nieves, 587
U. S., at –––. In most American courts that had considered
the question as of 1871, the favorable termination element of
a malicious prosecution claim was satisfed so long as the
prosecution ended without a conviction. As one infuential
New York decision explained, when the individual was “con-
victed in the suit or proceeding complained of,” he could not
maintain an action for malicious prosecution. Clark v.
Cleveland, 6 Hill 344, 346, n. a (1844). But when the indi-
vidual was not convicted, the “question is, whether the
prosecution instituted by the defendant can be said to have
been terminated, disposed of, or, as the books usually say, at
an end.” Id., at 346. The “technical prerequisite is only
that the particular prosecution be disposed of in such a man-
ner” that it “cannot be revived.” Id., at 347; Bacon v. Wa-
ters, 84 Mass. 400, 401–402 (1861); M. Newell, Law of Mali-
cious Prosecution 327–328 (1892) (Newell).
On that point, American courts as of 1871 were largely
in agreement. To take one example, the Supreme Court of
Indiana ruled that a dismissal satisfed the favorable termi-
nation requirement because it marked “an end to further
proceedings against the defendant” on the charges. Chap-
man v. Woods, 6 Blackf. 504, 505–506 (1843). Similarly, the
Supreme Court of Tennessee concluded that a suit was
proper when “the prosecution was at an end.” Pharis v.
Lambert, 33 Tenn. 228, 232 (1853).
For that reason, a plaintiff could maintain a malicious
prosecution claim when, for example, the prosecutor aban-
doned the criminal case or the court dismissed the case with-
out providing a reason. See, e. g., Fay v. O'Neill, 36 N. Y.
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OMPSON v. CLARK
Opinion of the Court
11, 13 (1867); Murray v. Lackey, 6 N. C. 368, 368–369 (1818);
D
riggs v. Burton, 44 Vt. 124, 143–144 (1871); Brown v. Ran-
dall, 36 Conn. 56, 61–63 (1869); Chapman, 6 Blackf., at 505–
506; Sayles v. Briggs, 45 Mass. 421, 425–426 (1842); Yocum
v. Polly, 40 Ky. 358, 359 (1841); Burhans v. Sanford, 19 Wend.
417, 418 (N. Y. 1838); Cotton v. Wilson, Minor 203 (Ala. 1824).
Several courts explicitly added, moreover, that a favorable
termination did not require an acquittal or a dismissal ac-
companied by some affrmative indication of innocence. In
the words of one court, it “is not to be understood, that an
action, for a malicious prosecution, will not lie, unless the
party has been acquitted by a jury on trial.” Thomas v.
DeGraffenreid, 11 S. C. L. 143, 144–145 (1819). “On the con-
trary, a person may have his action after a bill rejected by
the grand jury, or even where no bill has been preferred,
if there is a fnal end of the prosecution, and the party
discharged.” Id., at 145; see also Chapman, 6 Blackf., at
505–506.
The treatises of that era agreed that a favorable termina-
tion occurred so long as the prosecution ended without con-
viction. Cooley's tort-law treatise stated, for example, that
“the reasonable rule seems to be, that the technical prerequi-
site is only that the particular prosecution be disposed of in
such a manner that this cannot be revived, and the prosecu-
tor, if he proceeds further, will be put to a new one.” Cooley
186; see also Newell 343 (expressing approval of the rule);
Hilliard 453, and n. 5 (recognizing the rule).
The parties to this case have identifed only one court that
required something more, such as an acquittal or a dismissal
accompanied by some affrmative indication of innocence.
In 1863, the Rhode Island Supreme Court concluded, “with
reluctance,” that “ `the termination must be such as to fur-
nish prima facie evidence that the action was without foun-
dation.' ” Rounds v. Humes, 7 R. I. 535, 537 (1863). But
Rhode Island stood as an outlier on that question. The
other American courts to consider the issue did not require
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Opinion of the Court
some affrmative indication of innocence in order for a mali-
ci
ous prosecution tort claim to proceed. The courts simply
required that the prosecution ended in the defendant's favor.
As Chief Judge Pryor explained in his comprehensive opin-
ion for the Eleventh Circuit in Laskar v. Hurd, 972 F. 3d, at
1287: “The clear majority of American courts did not limit
favorable terminations to those that suggested the ac-
cused's innocence.”
Against that body of precedent and historical practice, re-
spondent Clark contends that American courts as of 1871
had not settled on any particular favorable termination rule.
But the cases and treatises that respondent latches onto ad-
dressed a separate issue—not whether the prosecution had
terminated in the defendant's favor, but whether the prose-
cution had terminated at all. In particular, courts divided
over whether a prosecutor's dismissal without discharge by
a judge in fact terminated a prosecution. Some courts con-
cluded that a prosecution ended when the prosecutor dis-
missed the case, even if the court had not yet taken action.
See, e. g., Woodman v. Prescott, 66 N. H. 375, 376–377 (1890);
see also 1 F. Hilliard, The Law of Torts or Private Wrongs
475 (1874); Newell 327–328; Cooley 186. Other courts said
that a prosecution did not end until a judge discharged, or
formally released, the defendant from the case. See, e. g.,
DeGraffenreid, 11 S. C. L., at 145; Paukett v. Livermore, 5
Iowa 277, 282 (1857).
But those cases did not purport to alter the basic favorable
termination principle—namely, that a malicious prosecution
claim could proceed when the prosecution terminated with-
out a conviction.
Respondent also seizes on a comment in the American Law
Institute's 1976 Second Restatement of Torts (as have most
of the Courts of Appeals that have sided with respondent's
position on this issue). See Jordan, 943 F. 3d, at 545–546;
Lanning, 908 F. 3d, at 26; Salley v. Myers, 971 F. 3d 308,
312–313 (CA4 2020); Jones v. Clark Cty., 959 F. 3d 748, 763–

48 TH
OMPSON v. CLARK
Opinion of the Court
765 (CA6 2020); Cordova, 816 F. 3d, at 651. The comment
i
n the Second Restatement opined that, for purposes of a
malicious prosecution claim, a criminal case terminates “in
favor of the accused” when the prosecution ends in a way
“as to indicate the innocence of the accused.” Restatement
(Second) of Torts § 660, and Comment a (1976).
But respondent's reliance on the 1976 Restatement is
fawed because the Restatement did not purport to describe
the consensus of American law as of 1871, at least on that
question. The status of American law as of 1871 is the rele-
vant inquiry for our purposes. See Manuel, 580 U. S., at
370; Nieves, 587 U. S., at –––; Laskar, 972 F. 3d, at 1286.
And in the overwhelming majority of American jurisdictions
that had considered the issue as of 1871, a plaintiff alleging
malicious prosecution did not need to show that his prosecu-
tion had ended with some affrmative indication of innocence.
Because the American tort-law consensus as of 1871 did
not require a plaintiff in a malicious prosecution suit to show
that his prosecution ended with an affrmative indication of
innocence, we similarly construe the Fourth Amendment
claim under § 1983 for malicious prosecution. Doing so is
consistent, moreover, with “the values and purposes” of the
Fourth Amendment. Manuel, 580 U. S., at 370. The ques-
tion of whether a criminal defendant was wrongly charged
does not logically depend on whether the prosecutor or court
explained why the prosecution was dismissed. And the in-
dividual's ability to seek redress for a wrongful prosecution
cannot reasonably turn on the fortuity of whether the prose-
cutor or court happened to explain why the charges were
dismissed. In addition, requiring the plaintiff to show that
his prosecution ended with an affrmative indication of inno-
cence would paradoxically foreclose a § 1983 claim when the
government's case was weaker and dismissed without expla-
nation before trial, but allow a claim when the government's
evidence was substantial enough to proceed to trial. That
would make little sense. Finally, requiring a plaintiff to
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49
Alito, J., dissenting
show that his prosecution ended with an affrmative indica-
ti
on of innocence is not necessary to protect offcers from
unwarranted civil suits—among other things, offcers are
still protected by the requirement that the plaintiff show the
absence of probable cause and by qualifed immunity.
***
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 af-
frmative indication of innocence. A plaintiff need only show
that the criminal prosecution ended without a conviction.
Thompson has satisfed that requirement here. We express
no view, however, on additional questions that may be rele-
vant on remand, including whether Thompson was ever
seized as a result of the alleged malicious prosecution,
whether he was charged w ithout probable cause, and
whether respondent is entitled to qualifed immunity. On
remand, the Second Circuit or the District Court as appro-
priate may consider those and other pertinent questions.
We reverse the judgment of the U. S. Court of Appeals for
the Second Circuit and remand for further proceedings con-
sistent with this opinion.
It is so ordered.
Justice Alito, with whom Justice Thomas and Justice
Gorsuch join, dissenting.
Homer described the mythical chimera as a “grim mon-
ster” made of “all lion in front, all snake behind, all goat
between.” The Iliad p. 201 (R. Fagles trans. 1990). Today,
the Court creates a chimera of a constitutional tort by stitch-
ing together elements taken from two very different claims:
a Fourth Amendment unreasonable seizure claim and a
common-law malicious-prosecution claim.
The Court justifes this creation on the ground that mali-
cious prosecution is the common-law tort that is most analo-
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gous to an unreasonable seizure claim. And because a
common-law
malicious-prosecution claim demanded proof of
a favorable termination, the Court holds that its new cre-
ation includes that element. But this Court has never held
that the Fourth Amendment houses a malicious-prosecution
claim, and the Court defends its analogy with just two sen-
tences of independent analysis and a reference to a body of
lower court cases.
I cannot agree with that approach. The Court's independ-
ent analysis of this important question is far too cursory, and
its reliance on lower court cases is particularly ill-advised
here because that body of case law appears to have been
heavily infuenced by a mistaken reading of the plurality
opinion in Albright v. Oliver, 510 U. S. 266 (1994).
What the Court has done is to recognize a novel hybrid
claim of uncertain scope that has no basis in the Constitution
and is almost certain to lead to confusion.
I
The Court asserts that malicious prosecution is the
common-law tor t that is most ana logous to petiti oner 's
Fourth Amendment claim, ante, at 43, but in fact the Fourth
Amendment and malicious prosecution have almost nothing
in common.
A
The Fourth Amendment prohibits “unreasonable searches
and seizures.” And a Fourth Amendment claim based on
an unreasonable seizure has two indispensable elements: (i)
there must have been a “seizure,” i. e., an arrest or some
other use of “ `physical force' or a `show of authority' that
`in some way restrain[s] the liberty' of [a] person,” Torres v.
Madrid, 592 U. S. –––, ––– (2021), and (ii) the seizure must
have been “unreasonable,” which means, in the case of a full-
blown arrest, that the offcers making the arrest must have
lacked probable cause. District of Columbia v. Wesby, 583
U. S. 48, 56–57 (2018).
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Malicious prosecution, on the other hand, requires proof
that
“(i) the suit or proceeding was `instituted without any
probable cause;' (ii) the `motive in instituting ' the suit `was
malicious . . . ; and (iii) the prosecution `terminated in the
acquittal or discharge of the accused.' ” Ante, at 44 (quoting
T. Cooley, Law of Torts 180 (1880) (Cooley)); see also Manuel
v. Joliet, 580 U. S. 357, 378 (2017) (Alito, J., dissenting).
A comparison of the elements of the malicious-prosecution
tort with the elements of a Fourth Amendment unreasonable-
seizure claim shows that there is no overlap. That is, a
plaintiff suing for unreasonable seizure need not prove any
of the elements of common-law malicious prosecution, and a
plaintiff suing for common-law malicious prosecution need
not prove any of the elements required to establish an unrea-
sonable seizure.
Start with the elements of an unreasonable-seizure claim.
Such a claim does not require proof that there was a
“prosecution”—i. e., a criminal proceeding that is initiated
by the fling of charges in the form of a criminal complaint,
information, or indictment—while a malicious-prosecution
claim obviously requires a prosecution. See, e. g., 1 F.
Hilliard, The Law of Torts or Private Wrongs § 2, pp. 413–
414 (1866) (Hilliard) (“The general principle is laid down,
that an action lies for maliciously causing one to be in-
dicted, whereby he is damnifed, either in person, reputa-
tion, or property” (emphasis added)); Cooley 180 (“[I]t is a
duty which every man owes to every other not to institute
proceedings maliciously, which he has no good reason to
believe are justifed by the facts and the law” (emphasis
added)); M. Newell, Law of Malicious Prosecution, False
Imprisonment, and Abuse of Process § 1, p. 3 (1892) (New-
ell) (same); see also W. Prosser, Law of Torts 860 (1941)
(“The interest in freedom from unjustifable litigation is
protected by an action for malicious prosecution” (boldface
deleted and emphasis added)). A person who is arrested
without probable cause may have a viable unreasonable-
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seizure claim even if he or she is released before any charges
are
fled.
An unreasonable-seizure claim also does not require “mal-
ice.” The Court has “almost uniformly rejected invitations
to probe subjective intent” in Fourth Amendment cases.
Ashcroft v. al-Kidd, 563 U. S. 731, 737 (2011). If a law en-
forcement offcer makes an arrest without probable cause,
the arrest is unreasonable and therefore unconstitutional
even if the offcer harbors no ill will for the arrestee. Like-
wise, if an offcer makes an arrest with probable cause, there
is no Fourth Amendment violation regardless of the “actual
motivations of the individual offcers involved.” Whren v.
United States, 517 U. S. 806, 813 (1996); see also Cordova v.
Albuquerque, 816 F. 3d 645, 664 (CA10 2016) (Gorsuch, J.,
concurring in judgment).
Finally, the validity of an unreasonable-seizure claim is not
dependent on the outcome of any prosecution that happens to
follow a seizure. A person who is arrested without probable
cause but then convicted based on evidence discovered after
the arrest is not barred from recovering simply because he
or she cannot show a favorable termination to the proceed-
ing. See Wallace v. Kato, 549 U. S. 384, 389–392 (2007); cf.
Heck v. Humphrey, 512 U. S. 477, 487, n. 7 (1994) (a person
may bring “a suit for damages attributable to an allegedly
unreasonable search” even if he or she was convicted).
Thus, an unreasonable-seizure claim may be shown without
proving any of the elements of a common-law malicious-
prosecution claim.
Turning now to the elements of malicious prosecution, we
see that all of those may be established without proving
either of the two elements that the constitutional text and
our precedents require in order to establish an unreason-
able seizure.
First, the tort of malicious prosecution does not require a
seizure within the meaning of the Fourth Amendment.
There are cases in which defendants charged with non-
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Alito, J., dissenting
violent crimes agree to appear for arraignment and are then
released
pending trial on their own recognizance. These de-
fendants are prosecuted, and they may bring a common-law
suit for malicious prosecution if the other elements of that
tort can be shown, but they are not seized. See, e. g., 1 Hilli-
ard § 1, at 412 (noting that malicious prosecution may involve
“injury to the person, as connected with false imprison-
ment,” but is “primarily . . . a wrong to character or reputa-
tion”); 3 D. Dobbs, The Law of Torts § 586, p. 388 (2011) (the
“prosecution does not necessarily involve any detention of
the plaintiff at all”). The term seizure would have to be
given a novel and extravagant interpretation in order to
reach a “defendant awaiting trial on his own recognizance”
or one who simply receives a “summons to appear at trial.”
Cordova, 816 F. 3d, at 663 (opinion of Gorsuch, J.).
Second, since a malicious-prosecution claim does not re-
quire a seizure, it obviously does not require proof that the
person bringing suit was seized without probable cause.
The claim does demand proof that the person bringing suit
was prosecuted without probable cause, but probable cause
at the time of arrest is a different question from probable
cause at the time at which a prosecution is initiated.
In light of the differences between these two claims, it
is apparent that a Fourth Amendment unreasonable-seizure
claim is not analogous to a claim for malicious prosecution.
Much more analogous are the common-law torts of false ar-
rest and false imprisonment, which protect against “[e]very
confnement of the person,” including one effected by “forc-
ibly detaining [someone] in the public streets.” Wallace, 549
U. S., at 388–389 (internal quotation marks omitted); see also
Dobbs, Law of Torts § 41 (describing elements of false im-
prisonment and false arrest); Restatement (Second) of Torts
§ 35 (1964) (same).
B
The Court does not make a serious effort to justify its
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OMPSON v. CLARK
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cution. Instead, the Court largely relies on the fact that
“most
of the Courts of Appeals to consider the question”
have drawn that analogy, ante, at 43, but the Court ignores
contrary lower court authority. See, e. g., Manuel v. Joliet,
903 F. 3d 667, 670 (CA7 2018); Jones v. Clark County, 959
F. 3d 748, 776–777 (CA6 2020) (Murphy, J., concurring in
part); Pagan-Gonzalez v. Moreno, 919 F. 3d 582, 608–617
(CA1 2019) (Barron, J., concurring). But in any event, we
should not decide this important question without independ-
ent ana lysis, and the Cour t's own cursory ana lysis is
erroneous.
The Court claims that the “gravamen” of petitioner's
Fourth Amendment claim is the same as that of a malicious-
prosecution claim: the “wrongful initiation of charges with-
out probable cause.” Ante, at 43. But what the Court de-
scribes is not a Fourth Amendment violation at all. As
explained, that Amendment protects against “unreasonable
searches and seizures”—not the unreasonable “initiation of
charges.” In fact, “the specifc provisions of the Bill of
Rights neither impose a standard for the initiation of a prose-
cution” nor “require a pretrial hearing to weigh evidence ac-
cording to a given standard.” Albright, 510 U. S., at 282
(Kennedy, J., concurring in judgment); see also 4 W. LaFave,
J. Israel, N. King, & O. Kerr, Criminal Procedure § 14.2(a),
pp. 329, 331 (4th ed. 2015) (noting that the Constitution does
not require “screening ” of the decision to prosecute “by some
neutral body” to ensure “some minimal evidence support-
ing the charge,” and “the sole constitutional protection” is
“what the Fourth Amendment requires to justify physical
restraints”).
The Court also says that the initiation of charges must be
“wrongful,” but it is not clear what that means. If that term
simply refers to the lack of probable cause, then the Court
has failed to capture the “gravamen” of malicious prosecution
because that tort requires not just that the defendant initi-
ated charges “without probable cause” but also—as the name
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Alito, J., dissenting
of the tort suggests—that this was done with “malice.” See
1
Hilliard § 4, at 416 (“want of probable cause” is not enough
“without malice”); 1 Newell § 6, at 7 (“The plaintiff must
show that the defendant acted from malicious motives in
prosecuting him”). Cf. ante, at 44, n. 3 (claiming to reserve
the question whether the claim requires malice).
If, on the other hand, the Court uses the term “wrongful”
to require “malice,” then the claim it has endorsed is even
more incompatible with the Fourth Amendment, which al-
most always imposes a purely objective standard. See
supra, at 52.
II
The Cour t's recog niti on of a Four th Amendment
malicious-prosecution claim has no basis in our precedents.
A
The Court relies on certain lower court decisions that
accepted the strange concept of a Fourth Amendment
malicious-prosecution claim, but that line of cases developed
in large part because of a misunderstanding of the tersely
worded plurality opinion in Albright, 510 U. S. 266. See
Hernandez-Cuevas v. Taylor, 723 F. 3d 91, 99 (CA1 2013)
(noting that “dicta” in Albright led many jurisdictions to
“recogniz[e] a Fourth Amendment malicious prosecution
claim”). Instead of simply accepting that misreading, we
should explain what Albright actually decided and what the
plurality said.
In that case, Kevin Albright was arrested and bound over
for trial without probable cause. The prosecution was dis-
missed before trial, and Albright then sued under 42 U. S. C.
§ 1983. The District Court dismissed his suit; the Court of
Appeals affrmed the dismissal; and when the case was ar-
gued in this Court, the only claim that Albright pressed was
that his prosecution without probable cause violated sub-
stantive due process. 510 U. S., at 268 (plurality opinion).
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He did not advance either a Fourth Amendment claim or a
ma
licious-prosecution claim.
This Court affrmed the dismissal of Albright's substantive
due process claim, and while no opinion gained majority ap-
proval, both the four Justices who joined the plurality opin-
ion and the three justices who concurred in the judgment
agreed that substantive due process does not include the
right to be free from prosecution without probable cause.
Id., at 268, 275 (plurality opinion); id., at 282 (opinion of Ken-
nedy, J.); id., at 286 (Souter, J., concurring in judgment).
That is all that Albright actually decided.
The terse plurality opinion did make comments about the
Fourth Amendment and malicious prosecution, and those
comments have led to confusion in the lower courts. But a
careful reading of the plurality opinion shows that it in no
way suggested that the Fourth Amendment protects against
malicious prosecution.
When the plurality commented on the Fourth Amendment,
it was addressing Albright's prosecution-without-probable-
cause claim, not malicious prosecution. And in connection
with the prosecution-without-probable-cause claim, the plu-
rality made the following two points. First, the plurality
noted that “[w]here a particular Amendment `provides an ex-
plicit textual source of constitutional protection' against a
particular sort of government behavior, `that Amendment,
not the more generalized notion of “substantive due proc-
ess,” must be the guide for analyzing [the] claims.' ” Id., at
273. Second, the plurality observed that the Fourth
Amendment is the constitutional provision that deals with
“pretrial deprivations of liberty.” Id., at 274.
What this discussion suggested was that if any provision of
the Constitution provided a home for Albright's prosecution-
without-probable-cause claim, the Fourth Amendment was a
better bet than the Fourteenth Amendment's Due Process
Clause. But the plurality did not conclude or even suggest
that a prosecution-without-probable-cause claim could be
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Alito, J., dissenting
brought under the Fourth Amendment. See id., at 274–275
(
expressly declining to express a view on the question). In-
deed, the plurality expressly reiterated that “the accused is
not `entitled to judicial oversight or review of the decision to
prosecute,' ” suggesting instead that the harm to Albright—
if any—was that he was “not merely charged” but also “sub-
mitted himself to arrest.” Id., at 274 (quoting Gerstein v.
Pugh, 420 U. S. 103, 114 (1975)).
As for malicious prosecution, the plurality did not even
hint that such a claim could be brought under the Fourth
Amendment. The plurality's only two references to mali-
cious prosecution appeared in the portion of the opinion that
set out what had occurred in the lower courts. Footnote 3
recounted that Albright's complaint contained a common-law
malicious-prosecution claim but that this claim had been dis-
missed without prejudice and that this issue was not before
the Court. 510 U. S., at 269, n. 3. Footnote 4 then observed
that there was an “ `embarrassing diversity of judicial opin-
i on' ” i n the lower cour ts as to whether a ma l ici ous-
prosecution claim was actionable under § 1983, and the foot-
note added that substantive due process did not “furnish the
constitutional peg on which to hang such a `tort.' ” Id., at
270–271, n. 4. But the plurality opinion did not suggest that
the Fourth Amendment could provide such a “peg,” and nei-
ther did any other Justice who concurred in the judgment.*
*Justice Scalia's concurring opinion made no mention of malicious prose-
cution. Justice Ginsburg mentioned malicious prosecution only when de-
scribing Albright's claims, see 510 U. S., at 277, n. 1, and to note that it
was “anomalous” that Albright sought to hold a police offcer (rather than
a prosecutor) liable under a malicious-prosecution theory, id., at 279, n. 5.
Justice Kennedy, joined by Justice Thomas, fled an opinion concurring
in the judgment and argued that “if a State did not provide a tort remedy
for malicious prosecution, there would be force to the argument that the
malicious initiation of a baseless criminal prosecution infringes an interest
protected by the Due Process Clause.” Id., at 286. But he did not sug-
gest that a malicious-prosecution claim could be brought under the
Fourth Amendment.
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B
Manuel
v. Joliet, 580 U. S. 357, also provides no sup-
port for a Fourth Amendment malicious-prosecution claim.
There, petitioner Elijah Manuel brought suit under the
Fourth Amendment, alleging that he was arrested without
probable cause and then held for seven weeks without proba-
ble cause after a judge ordered him detained. Id., at 359–
360. The Court reasoned that the Fourth Amendment pro-
hibits “government offcials from detaining a person in the
absence of probable cause.” Id., at 367. A violation of that
prohibition, the Court continued, may occur both “before the
formal onset of a criminal proceeding ” and “when legal proc-
ess itself goes wrong—when, for example, a judge's probable-
cause determination is predicated solely on a police offcer's
false statements.” Ibid. Accordingly, the Court concluded
that the plaintiff in that case could state a Fourth Amend-
ment claim because the “judge's order holding [him] for trial”
was not supported by probable cause. Id., at 368.
Although the majority asserts that Manuel authorized
Fourth Amendment malicious-prosecution claims, see ante,
at 4, Manuel did no such thing. That decision expressly de-
clined to determine “whether (and, if so, how) [petitioner's
Fourth Amendment claim] should resemble the malicious
prosecution tort.” Id., at 372, n. 10. Indeed, the majority's
analysis here is incompatible with the analysis in Manuel,
where the gravamen of the wrong was that petitioner was
“detain[ed] . . . in the absence of probable cause.” Id., at
367. Manuel thus provides no support for the Court's sug-
gestion that the Fourth Amendment prohibits the “initiation
of charges without probable cause.” Ante, at 43.
III
Instead of clarifying the law regarding § 1983 malicious-
prosecution claims, today's decision, I fear, will sow more
confusion. The Court endorses a Fourth Amendment claim
for malicious prosecution that appears to have the following
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Alito, J., dissenting
elements: (1) the defendant “initiat[ed]” charges against the
plai
ntiff in a way that was “wrongful” and “without probable
cause,” (2) the “malicious prosecution resulted in a seizure
of the plaintiff,” and (3) the prosecution must not have ended
in conviction. Ante, at 43, and n. 2. This tort has no prece-
dent in Fourth Amendment law. It is markedly different
from the common-law tort of malicious prosecution, and its
dimensions are uncertain.
First, it is not clear why this tort requires both a seizure
and a prosecution. As noted, the two do not always go to-
gether, and if the aim is to permit the victims of malicious
prosecution to sue under § 1983, it is not clear why detention
should be required. While pretrial detention certainly in-
creases the harm inficted by a malicious prosecution, such a
prosecution can be very damaging even if the victim is never
detained. See, e. g., M. Bigelow, The Law of Torts 204 (1875)
(a plaintiff may show damage to “his person by imprison-
ment, his reputation by the scandal, or . . . his property by
the expense”). The majority's only answer to the question
why the claim requires a seizure is that it is “housed in the
Fourth Amendment,” ante, at 43, n. 2, but that response begs
the antecedent question whether the Fourth Amendment
houses a malicious-prosecution suit at all.
Second, where the person bringing suit under § 1983 is ar-
rested and then prosecuted, it is not clear whether both the
arrest and the prosecution must have been done without
probable cause and without a legitimate law enforcement
purpose. An arrest made without probable cause may be
followed by a prosecution based on new evidence that clearly
establishes probable cause. And by the same token, the evi-
dence that establishes probable cause at the time of arrest
may be thoroughly discredited at some point well before the
termination of a prosecution.
Third and most important, it is not clear what the Court
means when it says that the “gravamen” of the claim is
“wrongful initiation of charges without probable cause.”
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Ante, at 43 (emphasis added). Since the Court refers re-
peatedly
to “malicious prosecution,” one might think that
this requires a guilty mental state, but in a footnote, the
Court raises the possibility that the constitutional tort it
recognizes may require nothing more than the absence of
probable cause. See ibid., n. 2.
If that turns out to be so, it is hard to see even the slight-
est connection between the Court's new tort and common-
law malicious prosecution. Malice is the hallmark of a
ma l ici ous-prosecuti on clai m. Even i f a prosecuti on is
brought and maintained without probable cause, a malicious-
prosecution claim cannot succeed without proof of malice.
See supra, at 54–55. And if the Court's new tort has noth-
ing to do with malicious prosecution, what possible reason
can there be for borrowing that tort's favorable-termination
element?
IV
Instead of creating a new hybrid claim, we should simply
hold that a malicious-prosecution claim may not be brought
under the Fourth Amendment. Such a holding would not
leave a person in petitioner's situation without legal protec-
tion. Petitioner brought Fourth Amendment claims against
respondents for false arrest, excessive force, and unlawful
entry, but after trial a jury ruled against him on all those
claims. See App. 142–146. Petitioner could have also
sought relief under state law. See, e. g., Cordova, 816 F. 3d,
at 662 (opinion of Gorsuch, J.). New York law appears to
recognize a malicious-prosecution tort with an element very
much like the favorable-termination element that the Court
adopts today, see Lanning v. Glens Falls, 908 F. 3d 19, 24–
25 (CA2 2018), but petitioner chose not to bring such a claim.
See Tr. of Oral Arg. 40–41.
For these reasons, I would affrm the judgment below, and
I therefore respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None