Anything that Samuel Alito, Clarence Thomas, and Neil Gorsuch dislike this much must have a lot to commend it. In a 6-3 vote Larry Thompson's federal 42 USC 1983 civil rights claim against NYPD officers for a warrantless search and groundless prosecution was allowed to proceed.
It gives me hope that a majority will not put the last nail in the coffin of the Bivens action this spring in Egbert v. Boule.
Brett Kavanaugh, writing for a majority of six concluded:
In sum, we hold that a Fourth Amendment claim under §1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff need only show that the criminal prosecution ended without a conviction
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, dissenting.
Homer described the mythical chimera as a “grim monster” made of “all lion in front, all snake behind, all goat
between.” The Iliad p. 201 (R. Fagles trans. 1990). Today,
the Court creates a chimera of a constitutional tort by
stitching together elements taken from two very different
claims: a Fourth Amendment unreasonable seizure claim
and a common-law malicious-prosecution claim.
The Court justifies this creation on the ground that malicious prosecution is the common-law tort that is most analogous to an unreasonable seizure claim. And because a
common-law malicious-prosecution claim demanded proof
of a favorable termination, the Court holds that its new creation includes that element.
But this Court has never held
that the Fourth Amendment houses a malicious-prosecution claim, and the Court defends its analogy with just two
sentences of independent analysis and a reference to a body
of lower court cases.
I cannot agree with that approach.
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