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Greetings, Court Fans!

The big SCOTUS news this week came yesterday, with the 53-47 Senate vote to confirm Judge Ketanji Brown Jackson as the first African American woman to serve on the Supreme Court. Congrats, Judge Jackson/America! As always you can find all sorts of analysis of the confirmation and soon-to-be Justice Jackson’s potential impact on the Court elsewhere. We’re sticking to opinions!

Of those, there was just one (signed) to report this week: Thompson v. Clark (No. 20-659), concerning the “favorable termination” element of a Fourth Amendment malicious-prosecution claim. Writing for a majority of six, Justice Kavanaugh held that a plaintiff bringing a malicious-prosecution claim need only show that his criminal prosecution ended without a conviction and not, as some circuits had held, with some “affirmative indication” that he was innocent of the crime charged.

The case began in 2014, when Larry Thompson’s sister-in-law called 911 and accused Thompson of sexually abusing his one-week-old baby. The police soon arrived, entered Thompson’s house without a warrant, and, after a brief scuffle, handcuffed him. His daughter was taken to the hospital after EMTs found red marks on her body, but that turned out to be only a bad case of diaper rash. Nonetheless, the police arrested Thompson for resisting arrest. They then swore out a criminal complaint charging him with obstructing governmental administration and resisting arrest. He remained in jail for two days, until a judge released him on his own recognizance. Shortly before his trial, the prosecution moved to dismiss the charges, which the trial court did. Neither the government nor the court explained the basis for the dismissal. Thompson sued the officers who arrested and charged him under 42 U.S.C. § 1983, alleging a Fourth Amendment claim for malicious prosecution. Under Second Circuit precedent, Thompson had to show not only that the criminal prosecution against him ended without a conviction but also that something about the result of the case affirmatively indicated his innocence. Because the record offered no explanation of why the charges had been dismissed, the District Court concluded Thompson couldn’t meet this burden and granted summary judgment to the officers. The Second Circuit affirmed. The Supreme Court then granted cert to resolve a split as to whether the “favorable termination” element of a malicious prosecution claim requires the plaintiff to show not only that he wasn’t convicted but also that the manner of the termination of criminal proceedings suggested innocence.

The Court reversed, in a decision by Justice Kavanaugh, joined by the Chief and Justices Breyer, Sotomayor, Kagan, and Barrett. Kavanaugh began by confirming and endorsing the existence of a cause of action for malicious prosecution under Section 1983. Surprisingly, the Court had never actually weighed in on this before, but as Kavanaugh noted, the lower courts have almost all recognized this cause of action—analogizing it to common-law malicious-prosecution claims—and their decisions are consistent with the Court’s general Section 1983 precedents. Kavanaugh then turned to the question at hand: what does it mean for a prosecution to “terminate[] in the acquittal or discharge” of the accused? Following the same process used to determine what the elements were in the first place, Kavanaugh looked to the common law of 1871, when Section 1983 was enacted. Although the number of decisions squarely on point was not great, those jurisdictions that had considered the question appeared to agree that this element required the plaintiff to show only that the criminal prosecution was over, not that it in ended in a way to suggest the plaintiff’s innocence. Courts in 1871 thus generally allowed malicious-prosecution claims to proceed in circumstances like Thompson’s, where prosecutors abandoned a criminal case or courts dismissed charges with no explanation. Kavanaugh then quickly brushed aside possible contrary authority cited by the respondent, concluding that it either addressed a different issue (namely, whether the prosecution had actually terminated and not how it had terminated) or post-dated the relevant time period by so much that it provided no guidance as to what the law in 1871 was. And there, the majority stopped, finding it unnecessary to go beyond the question of what the law of 1871 was to the question of whether that law actually made sense.

Justice Alito, joined by Justices Thomas and Gorsuch, dissented, based on a point the majority more or less assumed away. Section 1983 creates a cause of action for violations of constitutional rights. One constitutional right is the Fourth Amendment’s protection against “unreasonable searches and seizures.” Under Fourth Amendment precedent, an unreasonable seizure means arresting a person (or otherwise restraining their liberty) without probable cause. The common-law tort of malicious prosecution, by contrast, requires proof that criminal charges were initiated without probable cause, for malicious reasons, and that the prosecution terminated in the acquittal or discharge of the accused. While there are certainly similarities between these types of wrongs, their basic elements don’t line up all that well. For example, the Fourth Amendment isn’t limited to cases where a person is charged with a crime and doesn’t care about the motive of the officers who made the arrest, both of which are basic requirements of malicious prosecution. And a malicious-prosecution claim doesn’t care about whether there was probable cause at the time of the arrest (indeed, it doesn’t even require an arrest at all), instead looking to whether there was probable cause at the time the prosecution was initiated. For these reasons, the dissenters saw no logical basis to recognize a cause of action under Section 1983 for malicious prosecution. And turning to precedent, they found no more to go on. While the majority had quickly concluded (in just one sentence) that the Court’s prior decisions had already recognized this claim, Justice Alito dismissed those cases as either dicta or non-binding plurality decisions. He would thus not recognize a Fourth Amendment malicious prosecution claim at all, making it unnecessary to decide what one particular element of such a non-existent claim required. As Alito was quick to point out, the lack of a Fourth Amendment malicious-prosecution claim would not leave someone like Thompson without a constitutional remedy. He could still bring claims for false arrest, excessive force, or unlawful entry—torts already recognized under Section 1983. (Thompson did bring these claims, but lost on them in a jury trial.) And of course, he could bring a good-old common-law malicious-prosecution which, for reasons not explained, he did not. In the dissenters’ view, though, the fact that this particular plaintiff had run out of other claims to pursue did not warrant creating a new one.

While Thompson was the week’s only signed opinion, the Court was also active on the shadow docket. In Louisiana v. American Rivers (No. 21A539), a divided Court stayed a lower-court decision that had vacated a rule promulgated by the Trump-era Environmental Protection Agency. The rule (brought about by industry lobbying) limited the role of states in the permitting process for projects that could pollute rivers and streams. Environmental groups challenged the regulation, but while the litigation was pending, the new Biden Administration announced its intent to rescind and replace the Trump-era rule. Nevertheless, in October, a California district judge vacated the Trump-era rule. Industry groups and some states sought an emergency stay in the Supreme Court arguing that the judge did not have authority to vacate the regulation. The Court agreed, vacating the District Court’s judgment, albeit without explanation.

Justice Kagan dissented, joined not just by Justice Breyer and Sotomayor, but also the Chief. As she argued, the Court is meant to stay a decision currently under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” Here, that standard could not be met because (merits aside) the applicants faced no real irreparable harm from the regulation being vacated while a replacement was promulgated. Though the applicants argued that the vacated rule had given them “protections” against States that had previously abused their authority to review infrastructure projects, they failed to identify a single project that any State had obstructed in the five months since the District Court vacated the regulation or a single project currently threatened by the lower court’s ruling. By nevertheless granting a stay (and thereby also previewing the majority’s view of the merits), the Court had “render[ed] the emergency docket not for emergencies at all.” Joining many critics off the Court, Kagan lamented that the emergency docket had become “only another place for merits determinations—except made without full briefing and argument.”

That’s all for this week. Have a great weekend!

Dave and Tadhg