Nolle Prosequi and the Favorable Termination Rule

A Section 1983 lawsuit alleging malicious prosecution may go forward only when the criminal case against the defendant has been favorably terminated.  The favorable termination rule is nuanced.  At either end, favorable or unfavorable termination is obvious.

An acquittal after a jury trial is a favorable termination.  A guilty verdict is an unfavorable termination.  What about a deferred adjudication plea?  (Deferred adjudication is also known as "supervision" "accelerated rehabilitation," or "diversion.")  With a deferred adjudication plea, adjudication is withheld pending successful court supervision.  Ultimately, the charges are dismissed; and the defendant can truthfully claim that he was not convicted.  A favorable termination?  No.

What then, of nolle prosequi?  Under Connecticut law, a nolle prosequi is a “unilateral act by a prosecutor, which ends the pending proceedingswithout an acquittal and without placing the defendant in jeopardy.” Cislo v. City of Shelton, 692 A.2d 1255, 1260 n.9 (Conn. 1997) (internal quotations and citations omitted); Conn. Practice Book § 39-31.  A dismissal of criminal charges seems like a favorable termination.

Nevertheless, it seems that the question is fact specific.  See Roberts v. Babkiewicz, No. 08-3858 (2d Cir. Sep 30, 2009) (here) thoughtfully collects some cases:

The United States District Court for the District of Connecticut has reached different conclusions on whether a nolle prosequi bars a claim of false arrest or malicious prosecution. What these cases have in common however is that they were adjudicated at summary judgment, and the outcome depended on whether facts material to the reasons for the nolle prosequi remained in dispute. See, e.g., Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 249 (D. Conn. 2008)(summary judgment denied because deposition testimony provided evidence that the nolle wasnot conditioned on any benefit to state or victim); Clark v. Dowty, No. 3:05-CV-1345 (WWE), 2007 WL 2022045 (D. Conn. July 9, 2007) (summary judgment granted because nolle prosequiwas conditioned upon completion of therapy); Holman v. Cascio, 390 F. Supp. 2d 120, 125 (D.Conn. 2005) (summary judgment denied because deposition testimony provided evidence thatnolles were not entered as part of a plea bargain); Walsh v. Sousa, No. Civ. A. 3:01CV1872, 2004 WL 717169 (D. Conn. Mar. 25, 2004) (summary judgment granted); Galazo v. City of Waterbury, 303 F. Supp. 2d 213, 218-19 (D. Conn. 2004) (malicious prosecution claim survived summary judgment); Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 171 (D. Conn. 2003)(summary judgment granted because the charges were dismissed in exchange for a charitable contribution).
The majority of cases from Connecticut courts interpret Connecticut law so that a nolle prosequi satisfies the “favorable termination” element as long as the abandonment of the prosecution was not based on an arrangement with the defendant. See Holman, 390 F. Supp. 2dat 123 (“The majority of decisions applying Connecticut law . . . hold that a nolle of the criminal charge may still permit the plaintiff to satisfy [the favorable termination] element if the circumstances of the nolle satisfy the See v. Gosselin test of an abandonment of prosecution without request from or by an arrangement with [the defendant].” (internal quotations omitted)). Under Connecticut law, as Holman correctly stated, “the mere allegation of a nolle in a complaint may be enough to withstand a motion to dismiss under Fed.R.Civ.P.12(b)(6).” Id. at 124.
However, “a nolle will preclude a subsequent case for malicious prosecution when it was madeas part of a plea bargain . . . .” Id. at 123-24.
Slip op. at *5-7.  In Babkiewicz, the defendant sued for malicious prosecution after having the case against him "nolled."  The Second Circuit allowed the case to move forward based on the pleadings.  Id. at *7 ("Without additional facts explaining thecircumstances of Roberts’s initial arrest on December 1, 2004 and of his subsequent guilty pleaand the nolle prosequi, both entered on May 25, 2005, we must accept Roberts’s allegation thatthe assault charge brought by Officer Babkiewicz was nolled because medical evidence provedhis innocence.")