Legal Insight and Litigation

No Malice Aforethought: The Current State of "Malicious Prosecution"

To effectively limit and guide human behavior, the law needs (at least) discoverability, predictability and, above all, consistency. To be just, a cause of action and its elements should be defined and applied in the same way for similarly-situated individuals. That makes it especially problematic that there are so many conflicting rules and interpretations for “malicious prosecution” at both the state and federal levels.

Here at home, the Kentucky Supreme Court recently explicitly clarified the elements of malicious prosecution in the case of Martin v. O’Daniel, 507 S.W.3d 1 (Ky. 2016), adjusting and harmonizing elements last set out in the 1981 case of Raine v. Drasin, 621 S.W.2d 895 (Ky. 1981). In doing so, it raised some eyebrows with respect to the reformulation of the fourth element from Raine, “malice in the institution of such a proceeding.” The Martin court imbued the malice element with a new meaning, requiring that “the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying procedure was based….” In other words, for all intents and purposes, actual “malice” is no longer a necessary element of malicious prosecution in Kentucky, distinguishing this state’s version of the tort from many others’.

The states are split on what malice or subjective intent is required for malicious prosecution, but the federal courts are even more fundamentally split. There is no consistent opinion among federal courts as to the elements or even the viability of “malicious prosecution” claims under 42 U.S.C. §1983. As of now, federal courts of appeal in six circuits rely on the common-law elements of these civil-rights claims, three circuits have created their own versions of the tort without any intent/motivation element, and still others appear to have effectively rejected “malicious prosecution” as a basis for §1983 claims. The United States Supreme Court recently sidestepped the opportunity to end these inconsistencies in Manuel v. City of Joliet, 580 U.S. ___ (Mar. 21, 2017).

Maybe the most frustrating aspect of the Manuel decision is that it seemed all but certain the court would address whether the common-law elements of malicious prosecution should be a factor in a §1983 claim, as the question presented to the court involved explicitly invoked malicious prosecution in a §1983 context. That question remains unanswered. Manuel did give guidance that §1983 claims overall should be considered within the context of common law tort claims, but a definitive and unified standard of the elements of a §1983 malicious prosecution claim, or even the existence of such a claim in a §1983 context, remains far from settled.

And so we are left with muddier waters than we had to navigate several years ago – inconsistent standards in federal courts, divergent elements at the state level, and a tort with a misleading label. Maybe the contrast between its uncertain footing and the serious consequences that can follow from a finding that this “wrong” has been committed should tell us something.

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This article does not constitute legal advice.