Gaither Campaign for Rural America

An interesting alignment of justices form this 6-3 opinion in Thompson v. Clark that will make it easier for Americans to file lawsuits against prosecutors who drop charges before trial. 

• When I wrote it in that exact way just now, I shuddered. It doesn’t sound so good for the average American, now does it?

In this specific case, a father was thrown in jail for two full days for telling police they would need a warrant before they entered. The police entered his home anyways, removed his child, arrested him, and later confirmed that Thompson had committed no attributable signs of abuse.

Justice Kavanaugh wrote that since malicious prosecution tort law was written in 1871 and in 1871 the simple dropping of charges met the court’s legal requirement, that is all that would be legally required of Thompson to file a case. It says nothing about his chances of winning his case.

The minority opinion was quite an interesting read. They claim since Thompson was never prosecuted, there can be no malicious prosecution. You can stop there if you think that’s enough. 

They also claim Thompson’s arrest was with probable cause, which makes any arrest and actions by police automatically valid, regardless of the motivations of those police officers. 

If the opposite is true, where probable cause was not at play, these justices in the minority argue that a malicious prosecution claim would still not hold up in court. 

They lay out some interesting legal thoughts to consider: the Fourth Amendment protects against “unreasonable searches and seizures” but not “initiation of charges;” further, the Constitution offers no standards for prosecuting defendants and does not require any pre-trial hearings to weigh potential evidence; they point out that the majority equate “wrongful” with “malice,” which injects subjectivity into the case; further, proof of malice of the prosecution would be necessary before the Court. 

Try and prove state of mind in a court of law about a prosecutor or lawyer that has their wits about them. There would have to be proof that the prosecutor acted deliberately to be cruel. With an unwilling target, people are unlikely to be forthcoming.

Kavanaugh’s opinions journey themselves to where he’s already decided he’s going to ultimately arrive. The opinion will likely shock many and be welcome to those seeking legal grievance over government overreach. 

Perhaps, one potential outcome of this case will be less charges being filed with courts for no reason but to pressure potential defendants into taking plea deals they wouldn’t otherwise need to take. Otherwise, there is an element within the majority opinion that could have the unintended consequence of more charges being taken to trial, even those persistent charges where evidence didn’t coalesce as predicted or was somehow ruled inadmissible. 

I’m not a fan of it. Not a real critic either. It is an interesting read. I think it’s going to be quite the year for these SCOTUS opinions. It does seem that the liberal justices may forego the foundation of their opinions in order to rally enough support for the ultimate position they intend on taking.