Malicious Prosecution (§ 1983)

What It Is

A § 1983 malicious prosecution claim alleges that the defendant initiated or continued criminal proceedings against you without probable cause and with malice, causing you to suffer a seizure of your person (arrest, pretrial detention, restrictions on liberty).

After Thompson v. Clark, 596 U.S. 36 (2022), malicious prosecution claims under § 1983 are grounded in the Fourth Amendment.

Mental State Standard: Objective (Plus Malice in Some Circuits)

Malicious prosecution is grounded in the Fourth Amendment after Thompson v. Clark, so the probable cause analysis uses an objective reasonableness standard — would a reasonable officer have believed probable cause existed to initiate or continue the prosecution?

However, some circuits also require malice — meaning the officer brought or continued the charges with an improper purpose (to harass, retaliate, or punish) rather than a legitimate law enforcement motive. Not all circuits require malice as a separate element, so check your circuit’s case law.

See State of Mind Requirements for how this compares to other § 1983 claims.

The Elements

After Thompson v. Clark and circuit precedent:

1. The defendant initiated or continued a criminal proceeding against you
2. The proceeding terminated in your favor — but you don’t need an affirmative indication of innocence; a dismissal is enough (Thompson v. Clark)
3. There was no probable cause
4. The proceeding was brought with malice (some circuits don’t require this separately)
5. You suffered a Fourth Amendment seizure as a result

The Thompson v. Clark Fix

Before Thompson, circuits were split on what “favorable termination” meant. Some required an affirmative statement of innocence — a full acquittal or a dismissal specifically based on insufficient evidence. A dismissal “in the interest of justice” might not count.

Thompson fixed this: you need only show the criminal prosecution ended without a conviction. No affirmative indication of innocence required. This lowered a significant barrier for § 1983 plaintiffs.

The Practical Challenge

Malicious prosecution is harder to prove than unlawful arrest because:

• You must show the entire prosecution lacked probable cause, not just the initial arrest
• You must wait for the criminal case to end before suing (and the statute of limitations clock starts at termination)
• Prosecutors have absolute immunity for the decision to prosecute — so your claim usually targets the officer who initiated the proceedings, not the prosecutor

When to Bring It

Malicious prosecution is especially strong when:

• Charges were dropped or dismissed
• The criminal case was weak from the start
• Officers fabricated evidence or omitted exculpatory information in the arrest warrant or complaint
• The arrest was retaliatory (overlap with First Amendment retaliation)

Key Cases

• Thompson v. Clark, 596 U.S. 36 (2022) — Favorable termination doesn’t require affirmative innocence indication
• Albright v. Oliver, 510 U.S. 266 (1994) — § 1983 malicious prosecution grounded in specific constitutional provisions, not substantive due process
• Manuel v. City of Joliet, 580 U.S. 357 (2017) — Pretrial detention without probable cause violates the Fourth Amendment