Malicious Prosecution Law in the Ninth Circuit

Today a Ninth Circuit three-judge panel issued the most interesting - and most important - Section 1983 opinion of the year: Newman v. Parks, No. 04-56103 (link).

Let's say you're pulled over for some traffic violation.  The police officer doesn't like the "tone" you're taking with him, and so he charges you with assaulting an officer.  In your statement to the police, you note that you never touched or threatened to touch the police officer.  The officer is simply lying to harass you.

The D.A., after reading the arresting officer's report, charges you with assaulting an officer.  You know the case against you is built on lies.  Since you make too much to get a public defender, you spend between $10,000 and $25,000 on a criminal defense lawyer.  After a jury trial, you are promptly acquitted.

Since the only reason you were charged with a crime was because the police officer lied, you decided to sue the officer for malicious prosecution.  Like 99% of Americans, paying for a lawyer almost bankrupted you.  At the very least, you want to recoup your legal fees. Can your case go forward?

Unfortunately, the answer in the Ninth Circuit now seems to be, No.  Here's why:  Under the independent judgment rule, the prosecutor's decision to prosecute cuts off the arresting officer's liability unless one of exceptions apply: (1) "the district attorney was subjected to unreasonable pressure by the police officers [to file charges]," (2) "the officers knowingly withheld relevant information with the intent to harm [the plaintiff]," or (3)  "the officers knowingly supplied false information."  Slip op. at 8898-8899.

"Aha! Mike," you say, "you're slipping.  In the hypothetical you presented, you would be able to sue the lying police officer under the last exception you noted."  Alas, that would be true if there were not an impossible hurdle to jump.

Judge O'Scannalain writes for the panel that "a plaintiff’s account of the incident in question, by itself, does not overcome the presumption of independent judgment."  Id.   Rather, "If charges are filed," the independent judgment rule, "protects the officers unless such evidence shows that officers interfered with the prosecutor's judgment in some way, by omitting relevant information, by including false information, or by pressuring the prosecutor to file charges."  Id. at 8901.

Of course, there is always pressure on prosecutors to file criminal charges.  Police view prosecutors as being on the same "team," and thus get very angry and frustrated when prosecutors refuse to file charges.  Imagine if a prosecutor said to a police officer, "I won't file charges because I don't believe you."  Indeed, in a recent Supreme Court opinion, Garcetti v. Ceballos (link) here is what happened when a prosecutor refused to proceed with a case because he believed the sheriff deputy lied in a probable cause affidavit:      

[The prosecutor] spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors ... and followed up by preparing a disposition memorandum....

Based on [the prosecutor's] statements, a meeting was held to discuss the affidavit. Attendees included ... the warrant affiant and other employees from the sheriff’s department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case.

Does anyone suggest that this is abnormal?  Of course not.  Thus, that a prosecutor takes his team's side and decides to file charges based on the word of another team member does not signify much - other than loyalty to the home team.

The panel seems to base its decision on the plight of the hapless police officer, noting that "In virtually every case, then, the presumption [that the prosecutor exercised independent judgment] would be rebutted,and it would never limit the liability of the officer ...."  Slip op. at 8901.

This, of course is true, and thus presents an undeniable tension: Should a rule subject police officers to suit every time the acquitted's and police officer's accounts differ?  What about the hapless police officer?  Of course, one must also wonder what about the hapless citizen who is subject to a malicious criminal prosecution?

The panel glossed over this tension, instead focusing only on the plight of the hapless police officer.  This was the wrong approach, for at least four reasons. 

First, fewer than 5% of all criminal cases go to trial.  Of those cases that do make it to trial, the prosecution almost always win.  Thus, it's hardly the case that the floodgates of litigation would be opened by allowing acquitted defendants to sue police officers.  There thus would be few hapless police officers.

Second, in a case where, as in Newman v. Parks, the jury acquitted because they did not believe the police officer, the acquitted defendant should be able to sue.  How can we know that the jury believed the defendant?  Simple: The prosecution in Newman concerned a simple he said/he said issue.  If the jury believed the police officer, it would have convicted.  That the jury did not convict creates an inference that the officer was not credible, i.e., that he was lying.

Third, the victim of a malicious criminal prosecution must foot his own legal fees.  A police officer does not.  Thus, the plight of the wrongfully-accused citizen is much worse than the wrongfully-sued police officer.

Fourth, given the unavailability of malicious prosecution suits, fewer citizens will demand their right to trial.  An accused client who had the foresight to hire a lawyer who practice criminal and civil rights law, before Newman, might have been told: "Well, we can go to trial, but it'll be expensive.  On the upside, if we win, we can sue the police officer for malicious prosecution and perhaps recover your costs.  Of course, it's stupid to go to trial because you think you might win a civil suit.  But it's something to consider in your overall decision"  Absent the possibility of suit, why would a citizen risk going to trial?  Going to trial is risky enough even with the possibility of a later suit.  Thus, even fewer criminal cases will make it to a jury.

The panel reached the wrong result.  Worse, it did not recognize the tension presented in the case.  The panel should have noted and carefully considered the plight of the wrongfully-accused citizen.  Perhaps the panel would have reached the same conclusion - believing that the plight of the sued officer is worse than the plight of the accused citizen.  Still, it would have been nice to see that analysis.

[Ed's note: This topic would make an excellent law review article.  If you're a student and you would like to write about it, I'd be happy to help get you started.]

Comments

[James]

I'm not sure about your second argument, that the acquitted defendant should be able to sue because the jury's refusal to convict creates an inference that the officer was lying.

First, I'm not sure that you can say with any certainty that the jury believed the defendant - it could be that they just didn't like the prosecutor's demeanor, or that they were engaging in some sort of jury nullification.

But even if the jury's decision was based entirely on the he said/she said testimony, because of the different standards of proof in criminal and civil trials, there could be situations where the jury finds the officer more credible than the defendant, but not to the point that they can convict under the reasonable doubt standard. In those cases, under your argument, an officer would be subject to civil litigation even if the criminal jury found him more credible than the defendant.

It seems hard to reconcile that with the strong protections from suit under 1983 that police officers enjoy.

[Mike]

"But even if the jury's decision was based entirely on the he said/she said testimony, because of the different standards of proof in criminal and civil trials ..."

Eh, so you really think that juries say: "Well, we believe the officer's story by a preponderance of the evidence, but not beyond a reasonable doubt?" Juries, which are composed of people, tend to believe witnesses or not believe witnesses. Such graduations of belief are a legal fiction.

[Alexis]

Bascially, when i get pulled over bust out a tape recorder.

I have actually wondered about such type of lawsuits before.

[Abbygail]

I have an even better case in point to report for the legal scholors written law review from Minnesota. This is an excellent example of such a case that I have yet to find one similar to use comparitive briefs...
Thus more then 43,000 individuals each year are charged with this crime[s]alone. Yet if out all individuals criminal given to any charge has a less then 5% which go to trial, The case I am relating too must have a 1-1,000,000,000 chance if none at all of a jury trial let alone an acquittal...
Although The Legislature merely feels that an officers' word without the need for more is probable cause enough to be held to be given element in the 1st of multiple charges given a single act of conduct,

Nonetheless, the totality of the matter is given multple charges both with and without the officer having to render the full brunt of the merits given to prove the charges- Evidence to forego these has to be given to an evidentuary test method as well.

Never the less, my case here involves DUI/DWI charges whereby the Ninth Judicial District Court Judge ruled that defense be given only to present their ARGUEMENT to a cross examination of states' witness and denied all motions, witnesses and rejected defense pleas to submit nor use but in that submitted by the state to rebute their claims. Thus, the admisable evidence was in that submitted by the state in light more favorable a prosecution.

The court further rejected the use to any means by which the defense was given by the state in which to impeach witness testimony[s] be used against the state patrol officer and any other departments of official capacity who were involved in the incident.Eventually such restrictions were later denied after an independant state investigator tried to gain access to and refused certification of records held within the agencies involved in maintaining departmental records and document files. (ex: police video/booking tapes/audio files/Independant Chemical testing/ and distroyed was the BCA's all data disk)

Defendant was denied to having actual witnesses to testify at trial.
No evidence exculpatory in nature was allowed and rejected. The state was given to decide and thus provide which documents were to be submitted and available from theses agencies she chose and she stated were limited in having no further involvement.

The jury never knew any of this B.S. and the court ruled that not all would be entered into the record either. But the trial court judge did manage to 'blirt' a few things out on court record but out of jury presence stating, that it wasn't relavent for individuals other then the state in having to give record to substantiate proof to your(defendant)claims and beside,if the "prosecution didn't submit it" as evidence against you, then such evidence is not "your burden but The State's burden has to prove you[r]guilt. You don't have to prove your innocent!" (dah...huh..? what??) all-in-all, having the need to waive that guarenteed 5th Amemd. right,

I took the stand alone, against the states evidence in the matter and not just the case of the matter against the cop...Which is a hell of alot more difficult to maintain ones' innocense to hold merit but to give such doubt reasonable enough not to be given to that of just a 'He Said/She Said' b.s. theory- but to a 'He submitted, He documented, He tested, He filed, He observed, They arrested, these others were in to book, another stripped searched, took photos, this one finger printed, etc..etc..all the while I was supposedly to intoxicated and therefore drunks obviously have no control in what they do..and have no clear manner of accurate recollection to most if not all of the events that transpired upon my arrest..

Although the state portrayed accurately enough as to what 'intoxication' does to ones 'conduct'and inability to have any accurate memory of the events that transpired....(poo hoo..)

Yet Because it was I,the defendant, who never waivered on many seperate intimate details and stood my ground looking my accusers in the eyes where only once was I looked at, but the officer couldn't stick to the same statement twice in accuracy which was clear to me since I was there, but the jury wasn't so it was my word against the states whole case which it prepared for nearly 3-years.

Jury deliberation took less then 20 minutes but since supper was affoded them, the verdict wasn't handed down for approx. 1-1/2 hours).....hmmmmm zzzzz.
THE FINALE- - -NOT GUILTY to criminal intoxication, NOT GUILTY-to having been over the legal limit of .10 - NOT GUILTY to having been physically or chemically under the Influence period..and given to be given 'venue' as the jury form instructed, to read since neither side testified to the same events having had happend at all. Not to the manner, location, time, conduct, driving conditions, locations, cities, counties, nor the events leading to and from the same incident nor the course of actions taken could be testified to the same according to the trooper and that of myself. Having NO significant similarities and events been stated the same-

I wanted the jury to decide the truth of the matter given the facts, how does it all make sense as to what actually had taken place. INCLUDING that which derived around the intox. 5ooo results that were submitted as mine, the officer stated were mine, they were printed with full identity numbers of mine, yet I didn't blow the result he submitted, and passed the pbt twice, yet the trooper had me arrested and taken 3-intox tests in which the results he threw into the trash rather then filing them and submitting any of these reports to the BCA nor anyone else.

I DO-NOT condone drunk driving and never have being I too was a victim of a serious and near fatal crash 1985. Injuries I still suffer from have debilitated my spine and degenerated my disks. As a victims advocate and on both ends of the spectrum, the police and prosecutors abuse of the law has even legislative support in the misuse of its applications been given to their own law interpretations that are making their way in effectively destrying our Nations' Constitution and the Peoples Bill of Rights....the irony (tyranny) of it all anyway hey folks??

Thanks for listening....
gabby - AbbyGail

Mn.Law prosecutes drivers who 'SUPPOSEDLY" was reported to have committed ANY driving infraction AND an officer reports SMELLS OF Intoxicants is criminally charged as being influenced by such...(Not to mention whether or not the accused had admitted to having CONSUMED ANY single 1 beverage WITHIN any time frame between ones' waking and next mode of sleeping hours....

[Dan Jourdain]

I was wrongfully accused and arrested for child sexual conduct charges (2 federal counts) and was acquitted on both charges. Is there anyone one I can contact to obtain compensation for emotional/mental anquish. I lost a job and nearly lost custody of my son due to the false allegations. But I was acquitted on 1-19-07 in federal court. Please contact me at 218-679-3392 or 218-679-4136. Or e-mail the above addess. thans.

[Krstafer Pinkerton]

plain and simple, police officers do lie and trump up lots of other charges as well.... there is a relationship between police and prosecutor.... and in my case I have had 2 cases in seperate courts, all charges dismissed due to Prosecutorial Misconduct. I have coined the phrase, "MY KEYBOARD HITS HARDER THAN YOUR BATON"