The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation. This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be free from malicious prosecution. The better lens through which to analyze these claims, as the Court acknowledged in both Albright and Manuel, is the Fourth Amendment. Part I of this Note briefly discusses the history of 42 U.S.C. § 1983 and the development of the “constitutional tort” doctrine. It then summarizes the first Supreme Court § 1983 malicious prosecution case, Albright v. Oliver, and outlines the circuit split that developed in Albright’s wake. Part II describes Manuel v. City of Joliet and the limited circuit court caselaw that followed. Lastly, Part III of the Note asserts that the confusion surrounding § 1983 malicious prosecution claims stems from the tendency of courts to become bogged down in semantics. By trying to force the malicious prosecution tort into the Constitution, the courts have remained faithful to neither tort principles nor constitutional principles. While Justice Alito correctly noted in his Manuel dissent that there is a “severe mismatch” between the Fourth Amendment and the elements of malicious prosecution, the real failing of Manuel was not, as Justice Alito suggested, that it refused to answer the “malicious prosecution” question. Rather, the problem with Manuel was the Court’s failure to specify the elements of the type of § 1983 claim it recognized in Manuel—namely, unlawful detention after the start of legal process in violation of the Fourth Amendment. Part III ends with a suggested framework for such a claim