One for All, or All for One: The Circuit Split on the Probable Cause Element of a § 1983 Malicious Prosecution Claim

Julianne N. Zilahy

The full article will be available to read soon in the forthcoming 43:2 issue of the American Journal of Trial Advocacy.


         Under the First Amendment of the United States Constitution, every American has “the right . . . to petition the Government for a redress of grievances.”  The forum for redress is the judiciary, and therefore both civilians and prisoners alike possess a First Amendment right of access to the courts.  However, this right can be—and often is—abused.  “The unchained appetites of litigants and attorneys who abuse the judicial process not only damage the public perception of the legal system, but clog the already overcrowded courts and victimize the innocent parties to such litigation.”  Defendants in baseless civil lawsuits or criminal proceedings are perhaps the greatest victims of this abuse.  Lawsuits that have no factual or legal merit can nevertheless still cause those who have been sued great hardship despite their ability to win in court.  This reality is even truer for criminal defendants where, depending on the severity of the charge being prosecuted, a defendant’s very liberty can be compromised.  Regardless of severity however, “[t]he initiation of a criminal prosecution . . . immediately produces a ‘wrenching disruption of everyday life.’”  A prosecution “is a public act that may . . .  disrupt [a defendant’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends.”

          As a result, various tort claims exist as mechanisms to deter and punish those that abuse the use of the judiciary by bringing meritless claims or charges, or by initiating litigation out of malicious intent.  In particular, a malicious prosecution claim is a state law remedy available across the country.  Its federal counterpart—a § 1983 malicious prosecution claim—is a more recent, and still somewhat undeveloped, remedy.

          In 1994, the Supreme Court of the United States first faced the question of whether a federal claim for malicious prosecution existed under 42 U.S.C. § 1983, but the Supreme Court’s plurality decision in that case failed to fully answer the question of whether the Constitution guaranteed a right to be free from malicious prosecution.  Over two decades later, the Court seemed it would finally address this confusion, but again, denied answering the specific question of whether a malicious prosecution claim may be brought under an American’s right to be free of unreasonable searches and seizures under the Fourth Amendment.  As a result, the federal circuits remain with their own bodies of law that were developed during the interim after these two cases.  Unsurprisingly, as the circuits continue to shape their own precedent, more questions have arisen from the mysterious § 1983 claim.