Civil Rights & Constitutional Law
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January 11, 2018
• Practice Areas • Practices • Malicious prosecution, abuse of process, and false arrest
A criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:
A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.
A person forced to defend a groundless civil suit likewise suffers damages and may be able to recover for malicious prosecution.
To recover on a state-law malicious-prosecution claim, an Ohio plaintiff must prove:
(a) malice in instituting or continuing the criminal or civil legal proceeding;
(b) lack of probable cause or reasonable grounds to believe the allegations;
(c) termination of the prosecution or civil lawsuit in favor of the accused.
Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.
Relationship to “Abuse of Process” and “False Arrest”
Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.
Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a claim of false arrest.
Malicious Prosecution and False Arrest as a Civil-Rights Violation
In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.
Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. Here a plaintiff must prove:
(a) a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
(b) there was a lack of probable cause for the criminal prosecution;
(c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
(d) the criminal proceeding was resolved in the plaintiff’s favor.
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