Malicious Prosecution and Section 1983

Is there a Section 1983 cause of action for malicious prosecution?  If so, when?  Today in Avila v. Papas, No. 09-1867 (7th Cir. Jan. 4, 2010) (here), Judge Easterbrook dismissed a malicious prosecution claim where there was probable cause for the arrest, but where the citizen was charged under the wrong statute.  He dismissed the case on subject matter jurisdiction grounds:

Prior decisions inescapably render Avila’s federal theories frivolous. Albright v. Oliver, 510 U.S. 266 (1994), holds that malicious prosecution does not violate the Constitution’s due process clauses. There might be a problem under the fourth amendment if a person is arrested without probable cause, but when the suit is directed against the prosecution itself, rather than any attendant custody, there is no constitutional wrong.
In Avila, the woman made terrorist threats.  She was charged with making terrorist threats towards a public official, though the person she threatened wasn't a public official.  Still, her arrest was still proper under the Fourth Amendment.  See Devenpeck v. Alford, 543 U.S. 146 (2004) (holding that an arrest for the wrong crime is valid under the Fourth Amendment if you're nonetheless a criminal).

Beyond Avila, whether there exists a cause of action for malicious prosecution under Section 1983 is an interesting one.  In "Obstacles to Litigating Civil Claims for Wrongful Conviction: An Overview," (here) Michael Avery (a name familiar to us all) notes:
The first barrier to a cause of action under § 1983 for malicious prosecutionis the doctrinal question of whether there is any constitutional claim for mali-cious prosecution, a question that has provoked substantial controversy in the federal courts.... [T]he lower federalcourts have divided on the issue.  Most courts have held that something in addition to the common law elements of malicious prosecution is required to establish a Fourth Amendment violation, although there is disagreement as to precisely what is required.
Avery's entire article is worth reading - and is required reading if you represent the wrongfully accused.

In this blog post, Sheldon H. Nahmod writes:
However, there remains a particularly muddled area of section 1983 jurisprudence that has long cried out for rethinking: section 1983 malicious prosecution claims.
... 
The Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994) (plurality opinion), was a small step in the right direction because it at least made clear that section 1983 malicious prosecution claims cannot be based on substantive due process. But it did not go nearly far enough in removing malicious prosecution elements from the mix.
It's an interesting issue.  It's troubling that its not a constitutional tort to falsely prosecute a person.  I'd much rather spend a night in jail for a wrongful arrest than face a criminal prosecution.  (Tip: If you're in jail for a night, simply tell the guard you were threatened, and demand protective custody or solitary confinement.  Put your complaint in writing.)  How much does it cost to hire a lawyer?  How much uncertainty must one live under?

Assuming you're not raped or seriously beaten in jail, the wrongful arrest is an in-and-out procedure.  A wrongful criminal prosecution is a traumatic event that lasts for months or years.  Why is a wrongful prosecution a lesser constitutional injury than a wrongful arrest?

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