Eliminating the Malice Requirement for Fourth Amendment Malicious Prosecution Plaintiffs
Someone who has been wrongfully prosecuted in violation of their Fourth Amendment rights can sue a government actor, such as a police officer, for malicious prosecution under 42 U.S.C. § 1983. Malicious prosecution arises when a government actor initiates a criminal case without probable cause, the prosecution leads to the accused’s seizure, and the accused is ultimately not convicted. Fourth Amendment malicious prosecution claims are critical to holding officers and prosecutors accountable for misconduct. Official misconduct is common: more than half of the people exonerated since 1989 were incarcerated due in part to misconduct by the police or prosecutors.
Fourth Amendment malicious prosecution claims occupy a unique space in Fourth Amendment doctrine. Because the closest common law analogue is the tort of malicious prosecution, some federal appellate courts require plaintiffs to prove that the government actor acted with malice, an element of the common law tort. Courts have defined malice in various ways, ranging from the absence of probable cause, to personal animosity, to a reckless disregard for the plaintiff’s constitutional rights. But any test that examines a government actor’s subjective mindset contravenes the standard that has come to dominate Fourth Amendment doctrine—objective reasonableness.
This Comment argues that courts should eliminate the subjective malice requirement for Fourth Amendment malicious prosecution claims. It draws on other constitutional torts that arise during encounters with actors in the criminal justice system to show that a plaintiff-friendly objective standard is more appropriate than a subjective standard. If courts are unwilling to eliminate the malice requirement, this Comment proposes an alternative: a burden-shifting test. The intended effects of both proposals are to expand relief to more litigants across jurisdictions, harmonize Fourth Amendment jurisprudence, and deter police and prosecutorial misconduct.