What is “malicious prosecution?” This article will help answer that question. First, it’s important to distinguish between causes of action brought under state law and those brought under federal law. The distinction is important because for state law claims for malicious prosecution, the plaintiff must prove malice, that is, “ill will,” or an intent to harm. But for federal claims, as for example under 42 USC § 1983, there is no requirement that the plaintiff show malice. A federal cause of action for “malicious prosecution” is therefore somewhat misleadingly named. It would be more accurate to refer to this claim as “wrongful prosecution,” meaning a criminal prosecution lacking in probable cause.
The elements of malicious prosecution in Tennessee, Kentucky, and the Sixth Circuit Court of Appeals are set forth below.
Malicious Prosecution in Tennessee
The elements of malicious prosecution in Tennessee are (1) the defendant brought a lawsuit against the plaintiff without probable cause; (2) the defendant brought the lawsuit with malice; and (3) the lawsuit terminated in favor of the plaintiff. Green v. Campbell Cty., Tennessee, 352 F. Supp. 3d 860, 873 (E.D. Tenn. 2018)
Malicious Prosecution in Kentucky
The law generally disfavors the tort of malicious prosecution because “all persons [should] be able to freely resort to the courts for redress of a wrong[.]” Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). As a result, claimants alleging malicious prosecution must strictly comply with each element of the tort. Id. (citing Davis v. Brady, 218 Ky. 384, 291 S.W. 412 (1927)). To prevail on a claim of malicious prosecution, the claimant must prove the following elements:
(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding. Garcia v. Whitaker, 400 S.W.3d 270, 274 (Ky. 2013)
Malicious Prosecution in Federal Court
Under Sixth Circuit precedent, the plaintiff must prove the following to be successful on a § 1983 malicious prosecution claim: (1) the defendants were part of the decision to initiate a criminal prosecution against the plaintiff; (2) the criminal prosecution lacked probable cause; (3) the plaintiff suffered a deprivation of liberty as a result of the legal proceeding; and (4) the criminal prosecution was resolved in the plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010)
Generally, our civil rights lawyers will bring malicious prosecution claims against state actors under federal law. An example of this sort of case was our recent success in the “Operation Candy Crush” litigation, in which we secured a $1.3 million settlement for several individuals who were wrongfully arrested. But it’s worth noting that the state law claim of malicious prosecution does not require that the defendant be a state actor. It is possible to bring a malicious prosecution against a private individual under state law. These cases are very difficult, however, because they require the showing of “malice,” rather than mere negligence.
If you or a loved one has suffered from malicious prosecution, call the civil rights lawyers at DRS Law today.