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Supreme Court makes it easier to sue the police for malicious prosecution

The U.S Supreme Court building is seen at dusk in Washington on Oct. 22, 2021.
J. Scott Applewhite
The U.S Supreme Court building is seen at dusk in Washington on Oct. 22, 2021.

The U.S. Supreme Court on Monday made it easier to sue police and prosecutors for malicious prosecution. But the decision still leaves in place other barriers to such lawsuits.

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

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

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

Thompson, however, was tossed into jail for two days and charged with resisting arrest and obstructing governmental administration. Prosecutors would eventually offer him a plea deal in which his record would eventually be wiped clean, but he refused, and prosecutors subsequently dropped all charges without any explanation.

Thompson sued, alleging malicious prosecution. But under the federal appeals court precedent in New York, Thompson had to prove that his innocence had been "affirmed." The dropping of charges without explanation was not enough.

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

Justice Kavanaugh wrote the majority opinion, declaring that a plaintiff need only show that his prosecution ended without a conviction, and Thompson did that here.

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

Until this decision, in many jurisdictions "it didn't matter that framing an innocent person completely upended their lives," said Amir Ali, who represented Thompson in the Supreme Court. "If the charges were dismissed, there was no redress for the wronged person," unless a court affirmed his innocence.

"I think it's a long overdue ruling," said Michael Bromwich, who has spent years as a prosecutor, a defense lawyer and as inspector general for the U.S. Justice Department. "Prosecutors get away with way too much" when they realize they may not have a case and want to protect law enforcement from liability, he said.

It's not an 'open-the-floodgates' decision, says one expert

But Bromwich, like other experts, cautioned that bringing these malicious prosecution cases may not be easy.

"This is not an open-the-floodgates" decision, warned McCord. Indeed, the court's opinion specifically remanded Thompson's case back to the lower courts, where other defenses may be raised by law enforcement officials.

As Georgetown University Law professor Paul Butler observes, "These civil cases are tough to win, and when you do win them, the damages are often very small, so it can be very hard to find a lawyer."

He and McCord, both former prosecutors, note, for instance, that there remain other tools that immunize police and prosecutors from being sued.

And as Butler put it, "it's not as if [the Supreme Court's] conservatives suddenly got woke. ... Liberals should take no heart from a methodology based on the understanding of tort law in 1871." Justice Kavanaugh, in his opinion, indicated that the court must start its analysis based on torts available in 1871 because that was the year Congress passed the law authorizing lawsuits against state and local officers who deprive individuals of their rights "under color of state law." But that is not necessarily the understanding of tort law today.

Dissenting from Monday's ruling were conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch. Writing for the three, Alito said: "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."

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.