The United States Supreme Court granted certiorari to the Sixth Circuit case of Chiaverini v. City of Napoleon, Ohio on December 13, 2023. The case concerns the issue of how federal malicious prosecution claims are to be governed and defended against. Specifically, the approaches for the cause of action under consideration are the “charge-specific” rule utilized by the Second, Third, and Eleventh Circuits or the “any-crime” rule utilized by the Sixth Circuit. As a Sixth Circuit case, Chiaverini applied the any-crime rule in its holding, concluding that “[b]ecause probable cause existed to arrest and prosecute Chiaverini on at least one charge, his malicious-prosecution and false-arrest claims fail.” Chiaverini v. City of Napoleon, 2023 WL 152477, No. 21-3996, *7 (6th Cir. 2023). With the Court’s eventual decision, the doctrine governing this cause of action could potentially be clarified into a uniform approach for the first time since the cause of action was explicitly recognized as available under the Fourth Amendment. It could also explicitly provide and require a framework for the Seventh Circuit to apply in this type of claim that, until very recently, the Circuit had declined to treat as a viable cause of action in § 1983 claims.
The 1994 Supreme Court case of Albright v. Oliver was the progenitor of the malicious prosecution cause of action in federal court pursuant to § 1983. The Supreme Court held in Albright that the plaintiff’s “claimed right to be free from prosecution without probable cause must be judged under the Fourth Amendment,” rather than substantive due process. Albright v. Oliver, 510 U.S. 266, 267 (1994). The Court reasoned that the Fourth Amendment, barring unreasonable searches and seizures as it does, has “relevance to the deprivations of liberty that go hand in hand with criminal prosecutions,” and is thus the proper basis for a federal malicious prosecution claim under § 1983. Following Albright, the doctrine around this cause of action has developed in divergent manners circuit to circuit, but the general tenets of such a federal claim are as follows: “a plaintiff must demonstrate that: (1) he has satisfied the requirements of a state law cause of action for malicious prosecution; (2) the malicious prosecution was committed by state actors; and (3) he was deprived of liberty.” Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996).
The state common law malicious prosecution elements that must be satisfied under this standard are not uniform, but typically involve an evidentiary showing that “a defendant instigated a criminal proceeding with improper purpose and without probable cause” and “termination of the prior criminal proceeding in favor of the accused.” McDonough v. Smith, 139 S.Ct. 2149, 2156 (2019); Heck v. Humphrey, 512 U.S. 477, 484, (1994). In Illinois specifically, the state common law tort of malicious prosecution requires the following: (1) the commencement or continuation of an original criminal or civil judicial proceeding by the defendant, (2) the termination of the proceeding in favor of the plaintiff, (3) the absence of probable cause for such proceeding, (4) the presence of malice on the part of the defendant, and (5) damages resulting to the plaintiff. Johnson v. Target Stores, Inc., 341 Ill.App.3d 56, 72 (1st Dist. 2003); (quoting Turner v. City of Chicago, 91 Ill.App.3d 931, 934 (1st Dist. 1980) and Illinois Nurses Ass’n v. Board of Trustees of the University of Illinois, 318 Ill.App.3d 519, 533-34 (1st Dist. 2000)). With regard to the favorable termination requirement, the United States Supreme Court recently held in Thompson v. Clark that “a plaintiff need only show that his prosecution ended without a conviction,” rather than requiring a prospective plaintiff to show that they were outright acquitted in their prosecution. Thompson v. Clark, 596 U.S. 36, 39 (2022). Furthermore, this favorable resolution of the underlying criminal proceedings for the malicious prosecution plaintiff is the point at which the statute of limitations for such a claim begins to run. McDonough, 139 S.Ct. at 2161.
The Seventh Circuit’s Approach & Thompson
In prior decades and jurisprudence, the Seventh Circuit has largely treated malicious prosecution claims at the federal level as non-cognizable in effect, if not in principle. As recently as 2018, the Circuit succinctly stated “‘[T]here is no such thing as a constitutional right not to be prosecuted without probable cause.’” Manuel v. City of Joliet, Illinois, 903 F.3d 667, 670 (7th Cir. 2018) (quoting Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013)). The Seventh Circuit’s rationale has been the requirement that the deprivation of liberty proven in a malicious prosecution cause of action must constitute a deprivation “of a right secured by the Constitution and laws of the United States.” Reed, 77 F.3d at 1051. This harm-focused approach led the Seventh Circuit to focus on the stage of legal proceeding in which the alleged wrong occurred in determining the applicable cause of action, which often involves wrongful search or false arrest allegations in the Fourth Amendment context. Accordingly, the court’s practice has been to dispense with false arrest or wrongful search-based claims brought under the auspices of malicious prosecution, reasoning that “[m]alicious prosecution provides a remedy for a deprivation of liberty pursuant to legal process, – but when the arrest takes place without a warrant, the plaintiff only becomes subject to legal process afterward, at the time of arraignment.” Serino, 735 F.3d at. at 593-594. This practice applied even in circumstances where a criminal charge was initiated based on wrongful conduct at the investigatory stage, such as a wrongful detention or search, since in such a situation, the court noted that “the wrong is the detention rather than the existence of criminal charges.” Manuel, 903 F.3d at 670. In effect, unless a given plaintiff’s federal malicious prosecution claim involved wrongful conduct stemming from activity following and related to the commencement of legal proceedings against the plaintiff, said plaintiff’s malicious prosecution claim was typically dispensed with and/or reconfigured into a false arrest or wrongful search claim by the Seventh Circuit. Attaching a malicious prosecution claim as a purely state law-based claim brought alongside federal claims under § 1983 via supplemental federal jurisdiction has been a common practice in the Seventh Circuit to get such claims heard in federal court.
However, the Seventh Circuit’s approach was indirectly called into question by the Supreme Court in the 2022 case of Thompson v. Clark, which held that there is a claim “under § 1983 for malicious prosecution, sometimes referred to as a claim for unreasonable seizure pursuant to legal process.” Thompson, 596 U.S. at 42. The Court reasoned that “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 likewise the gravamen of the tort of malicious prosecution.” Id. at 43. In sum, though the Court did not issue a binding decision on the elements and applicability of the federal cause of action of malicious prosecution, the conclusions that they did reach and statements in making them illustrate intent to recognize the cause of action at the federal level that goes well beyond what the Seventh Circuit has considered.
Depending on how the Court decides Chiaverini, a § 1983 claim for malicious prosecution may exist unquestionably in the Seventh Circuit for the first time.
Chiaverini’s Potential Impact on Malicious Prosecution Claims in the Seventh Circuit
As previously noted, Chiaverini has posed the question to the Supreme Court of whether the any-crime rule or charge-specific rule should apply in litigating malicious prosecution claims. As previously noted, the any-crime rule, which the circuit court in Chiaverini applied, holds that “[b]ecause probable cause existed to arrest and prosecute Chiaverini on at least one charge, his malicious-prosecution and false-arrest claims fail.” Chiaverini, 2023 WL 152477, at *7. On the other hand, the charge-specific rule, which has been propagated by the Second, Third, and Eleventh Circuits, stands for the principle that multiple criminal charges involved in events giving rise to malicious prosecution claims “arose out of distinct facts and should be analyzed separately.” Posr v. Doherty, 944 F.2d 91, 100 (2nd Cir. 1991). Under this approach, one criminal charge arising from a set of circumstances could be found to be backed by probable cause and upheld, whereas another charge from those same circumstances could be found to not be backed by probable cause and thus give rise to a malicious prosecution claim.
As such, the United States Supreme Court’s prospective ruling in Chiaverini stands to drastically change the approach of one side of a circuit split. The prospective ruling also stands to provide explicit instructions on applying the claim of malicious prosecution in the federal context that, in the absence of such instructions until now, the Seventh Circuit has heretofore declined to do. It should be noted, however, that in deciding questions surrounding the state-based claim for malicious prosecution, the Seventh Circuit has taken a stance. Specifically, in litigating state-based claims for malicious prosecution brought alongside federal claims and given supplemental federal jurisdiction, the Seventh Circuit has opted for the charge-specific rule. In the case of Holmes v. Village of Hoffman Estate, the court opined on the plaintiff’s malicious prosecution arguments as follows: “[h]e argues, as he did below, that because he was prosecuted on multiple charges, the basis for each charge must be examined separately, and if probable cause was lacking as to any charge, the defendants still may be held liable for his prosecution on that unsupported charge. He is correct.” Holmes v. Village of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007). The court further stated that, “[i]n this respect, a malicious prosecution claim is treated differently from one for false arrest.” Id.
As such, whichever way the Supreme Court decides Chiaverini, the way the Seventh Circuit handles malicious prosecution claims stands to change. If the Court decides the case in favor of the any-crime rule, that would be a result more in line with the Seventh Circuit’s reasoning regarding the claim of malicious prosecution at the federal level, i.e., that it is effectively analogous to the tort of false arrest. At the same time, the Court could very well use the opportunity to develop this doctrine to clearly provide requirements and guideposts for this cause of action, which Thompson opened the door to, that the Seventh Circuit has declined to do in a vacuum to date. Additionally, the Court deciding Chiaverini in favor of the any-crime rule would flip the way in which the Circuit handles state-based malicious prosecution claims. On the other hand, if the Court decides Chiaverini in favor of the charge-specific rule, the Seventh Circuit’s state claims approach would be unchanged, but its federal approach would likely have to change entirely. Should the Court conclude that the probable cause requirements for proving and defeating false arrest claims and malicious prosecution claims are separate and distinct from one another, the Seventh Circuit’s already weakening position of conflating federal malicious prosecution and false arrest claims would become further untenable.
Ultimately, Chiaverini stands to change the game and possibly give clarity to a judicially split and doctrinally murky area of § 1983 litigation, which is why it’s one of the top cases for federal civil litigators to watch on the Court’s docket in the new year.