Law enforcement officers can violate the Fourth Amendment, and thereby open themselves up to liability, both by performance of an improper arrest and by something called “malicious prosecution.” But what’s the difference, and does this have anything to do with the actions of prosecutors, or is it just about police?
The more familiar idea, to most folks, is the bad (or “false”) arrest. A police officer or sheriff’s deputy stops and detains somebody, potentially escalating into a formal “arrest,” without a concrete, particularized basis to suspect that they’ve committed a crime. Depending on the totality of the circumstances, that may well be an unreasonable seizure, and thus a violation of the Fourth Amendment. (A false arrest overview writeup is here.)
The idea of “malicious prosecution” is related, but it’s a little more complicated, in part because the idea of “malicious prosecution” is not actually found anywhere in the Fourth Amendment and is instead drawn from state common law. Malicious prosecution occurs based on “the wrongful initiation of charges without probable cause.” Thompson v. Clark, 596 U.S. 36, 43 (2022). Proof of “malicious prosecution” also generally requires showing a malicious motive for instituting the charges and termination of the case via acquittal or discharge. Id. at 44. Some caselaw interpreting California law also suggests a requirement of showing that the defendant prosecuted the plaintiff for the purpose of denying equal protection or another specific constitutional right. See Mills v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019).
Police officers take actions that “initiate charges,” so they can commit “malicious prosecution” even though officers are not themselves prosecutors. Chiaverini et al. v. City of Napoleon, Ohio, 144 S.Ct. 1745 (2024). Other state actors, such as a coroner or an investigator, can also commit malicious prosecution in some circumstances. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).
Malicious prosecution causes of action can be asserted under both California law and under 42 U.S.C § 1983, but there are serious obstacles to this type theory either way. A federal claim runs risks of losing on qualified immunity grounds simply because there are so few pro-plaintiff decisions on the books and thus a fairly flimsy basis to show that a given legal rule was “clearly established.”
State law is also a very tricky landscape. California Government Code § 821.6 provides very strong immunities for public employees, providing that: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This language has been broadly interpreted to mean that “Under California law, a police officer may be held liable for false arrest and false imprisonment, but not for malicious prosecution." Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997).
As with everything in law, there are exceptions to this broad rule. One of the most important is the language of Gov. Code § 820.21, which abrogates immunity for: (1) perjury; (2) fabrication of evidence; (3) failure to disclose known exculpatory evidence; or (4) obtaining testimony by duress, fraud, or undue influence — if committed with malice. Additionally, If the basis of a malicious prosecution claim does not stem from “the initiation or prosecution of proceedings,” the section 821.6 immunity does not apply. Leon v. County of Riverside, 14 Cal.5th 910, 924 (2023).
Actual prosecutors are typically likely to rely on police reports that allege that crimes have occurred, and so are even less likely to engage in “malicious prosecution” than law enforcement officers, unless they completely disregard what is suggested by the language of the police reports. Prosecutors also have an even broader range of immunities for their actions than do law enforcement officers.
Another interesting distinction between a “bad arrest” cause of action and a “malicious prosecution” cause of action is that they may “accrue” at very different times for purposes of determining when the statute of limitations begins to run. Most 1983 claims are subject to a 2-year statute of limitations (at least in California), but the time at which the claim accrues (starting the clock running) is governed by federal law. In a malicious prosecution case, the cause of action does not accrue until the criminal cause of action is terminated favorably to the plaintiff/defendant. McDonough v. Smith, 139 S. Ct. 2149, 2154-55, 204 L. Ed. 2d 506 (2019). Consequently, a malicious prosecution theory may be a way to pursue legal action against the individuals who caused charges to get filed in the first place (if the other elements of malicious prosecution appear satisfied and the situation is sufficiently egregious to be outside of the section 821.6 immunity) in a situation where a straightforward theory of a false arrest would be barred by the passage of time for a person who has burned up years fighting the criminal case to a successful resolution.
The idea of “malicious prosecution” can also refer to the bringing of a civil lawsuit with no basis, where there is termination favorable to the defendant and where the defendant is harmed. Such malicious prosecution claims are disfavored in California law because of their tendency to chill the use of the courts.
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