Continued from previous page
The New Jersey Police Chief Magazine | February 2023
MALICIOUS PROSECUTION CLAIMS The facts of Thompson v . Clark involve a complaint of sexual abuse lodged against a newborn baby ’ s father by his sister-in-law in Brooklyn , New York .
Two EMTs arrived in response to the sister-in-law ’ s 911 call . Thompson , unaware of the 911 call , denied that anyone called and refused the EMTs entry . The EMTs then contacted the police .
When four police officers responded to Thompson ’ s apartment – where he lived with his fiancée , his newborn daughter and sister-in-law – he refused to grant them entry without a warrant . The officers then forced their way into his apartment , engaged in a brief scuffle with Thompson , and handcuffed him . The EMTs checked the baby , found red marks on her body , and took her to the hospital . The marks were later determined to be diaper rash .
Meanwhile , Thompson was arrested and processed for obstructing governmental administration and resisting arrest . He was held for two days in jail until a judge released him on his own recognizance . Eventually , before trial , the prosecution moved to dismiss the charges and the trial judge granted dismissal .
Thompson sued the four officers for several constitutional violations , among them a Fourth Amendment malicious prosecution claim . Case precedent in the Second Circuit required that malicious prosecution claims show that a criminal prosecution ended not only without a conviction but that plaintiffs also must provide an affirmative indication of innocence . Thompson was unable to provide such proof in District Court and summary judgment on the Fourth Amendment claim was granted to the police officers . The Second Circuit followed its precedent and upheld the District Court ' s determination .
Prior to the Supreme Court decision in this case , federal courts of appeal were split on how to apply the favorable termination requirement under a Fourth Amendment § 1983 claim for malicious prosecution . The 6-3 majority opinion by Justice Kavanaugh settled the matter by holding that a malicious prosecution plaintiff need only show that prosecution ended without conviction . Thus , the more stringent requirement employed by the Second Circuit and a few other federal circuits is no longer required .
CIVIL RIGHTS CLAIMS AGAINST FEDERAL AGENTS Since the text of federal statute 42 USC § 1983 , a civil action for the deprivation of civil rights , bases a constitutional violation upon anyone acting “ under color of any statute , ordinance , regulation , custom , or usage , of any State or Territory or the District of Columbia ” federal agents are not subject to suit under the statute . In the 1971 case of Bivens v . Six Unknown Named Agents the U . S . Supreme Court inferred a private right of action for money damages where there is no other federal remedy for a constitutional violation . This initial holding was limited to Fourth Amendment violations by federal officials . It was later expanded in 1979 to include Fifth Amendment due process claims and Eight Amendment violations in 1980 .
In Egbert v . Boule , the Court was confronted with a novel claim against a Border Patrol agent alleging First Amendment retaliation tied to a Fourth Amendment violation . The case resulted from an innkeeper , Robert Boule , at the U . S . -Canadian border , who filed a complaint with Border Patrol supervisors against an agent he alleged used excessive physical force against him while investing an immigration matter . After Boule ’ s complaint was filed the agent contacted the Internal Revenue Service and suggested that Boule be investigated . Boule subsequently filed a federal Bivens action against the agent and linked his First Amendment retaliation claim to his Fourth Amendment excessive force claim . Justice Thomas ’ s majority opinion held that a First Amendment claim was outside the scope of Bivens . Furthermore , the majority said that Boule ’ s Fourth Amendment excessive force claim was also not proper since there was an alternate remedy through the Customs and Border Protection ’ s administrative accountability process . The Court stated that even though Bivens permits Fourth Amendment claims against federal officials , it raises national security concerns when applied to Border Patrol agents . Justice Gorsuch issued a concurring opinion calling for the Court to overturn Bivens .
Egbert v . Boule continues the Court ’ s limitation of Bivens after an initial eight years of expanding its reach . Since 1980 , as Justice Thomas pointed out , the Court has declined in 11 cases to apply Bivens to other constitutional violations .
About the author Terrence P . Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator . He is now a tenured Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in disciplinary cases , critical incidents , and employment matters . He is the author of Legal Issues in Homeland Security , Looseleaf Law Publications .
7