A criminal defendant who walks out of a criminal courtroom a free man without a conviction has every reason to believe that the result of his case was favorable. But for practitioners in the area of 42 U.S.C. Section 1983, the truth is more complex. A recent Second Circuit decision illustrates why.
Dale Roberts got in a jam with the local police. He was arrested by Bloomfield, Connecticut, police officers on "various criminal and motor vehicle charges." While he was in police custody, an officer allegedly teed off on him, causing him injury. The officer then charged the man with assault on a police officer. The cop then beefed up his police report to make sure that the prosecutor forged ahead on the assault charge, a case of malicious prosecution. At least this is how the complaint read.
Roberts was charged with, among other things, interference with a police officer. This is one of a series of offenses I call "fourth outfielder" crimes. When all else fails, an officer can charge this offense. The statute reads more or less as follows. A person is guilty of interfering when they obstruct, hinder or delay an officer in the performance of his duties. Read literally, anything other than "yes, sir" promotes delay.
The state nolle'd the assault on a police officer charge, and Mr. Roberts plead guilty to interfering with a police officer. The plaintiff's lawyer, John Williams of New haven, plead the case as follows: The ass ult charge was nolle'd because "it was apparent from the medical evidence that the plaintiff was innocent of the charge." A district court granted the defendant judgment on the pleadings, dismissing the malicious prosecution and unreasonable force claims.
The Second Circuit reversed in a decision authored by Guido Calabresi holding that on the status of the pleadings it was by no means certain that the record was barren on whether the nolle of the assault charge was related to the guilty plea to interfering. "Notwithstanding the temporal proximity of the two charges and the subsequent guilty plea to one and the nolle prosequi of the other entered on the same day, there is nothing in the record that proves that the assault charge was nolled as part of the bargain struck," the Circuit held. In a rare victory for plaintiffs arising under Iqbal, the court also credited the claim in the complaint that the medical evidence made it evident that the assault charge was bogus.
Also of note in this decision is the Court's addressing of an issue that has hitherto confused and divided the District Courts in Connecticut: Is a nolle a favorable termination? Some district court judges have flirted with the notion of a nolle-plus test, requiring not just a unilateral abandonment of prosecution by the state, but some other indicia that the prosecution was not supported by probable cause. The Circuit formally abandoned that theory.
"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 no based on an arrangement with the defendant," the Court noted and followed this majority rule.
The moral of the story for practitioners: Any consideration given in exchange for a nolle is fatal. Don't stipulate to probable cause, offer an apology, agree to an evaluation, accept a diversionary program or donate a penny to the prosecutor's favorite charity. Think of it in terms of the detrimental reliance doctrine you learned in contracts class. A criminal defendant who altered his position in the world by a micron in exchange for a nolle forfeits the right to bring a malicious prosecution claim. And the same is true for those who purchase their nolle with consideration as insubstantial as the proverbial peppercorn.
Of course, all is not roses for the plaintiff in this case. The defendant made a run at Judgment on the Pleadings under FRCP 12(c). This is a hard case for a defendant to make, requiring a trial court to accept all well-plead facts as true. This will be a tough case to win at trial: having made this failed run at Judgment on the Pleadings all but guarantees that summary judgment will be denied.
See, Roberts v. Babkiewicz, 08-3858-cv.