Malicious Prosecution Claims in a Post-Rehberg World

Courtesty of http://www.probono.net

A decision civil rights lawyers have been waiting on, at least in the Second Circuit's jurisdiction where I practice, since the Supreme Court granted police officers civil immunity for lying to grand juries has finally issued, and it's very much a win for the good guys. Yes, I mean us.

In Coggins v. Buonora, 13-4635 (here) -- briefed and argued by friend and outstanding attorney, Scott Korenbaum -- the Second Circuit squarely addressed the soupy quagmire that resulted from the Supreme Court's decision in Rehberg v. Paulk in 2012. In Rehberg, the Court ruled that police officers could not be sued for lying to grand juries, even if there was no doubt that they had knowingly presented false testimony in order to secure an indictment. At first blush, Rehberg appeared to sound the death knell for causes of action sounding in malicious prosecution or denials of a fair trial. Municipal defense lawyers and lying cops everywhere began to celebrate, as it appeared that one could now frame an innocent man with abject impunity, free from any concern that manufacturing or withholding evidence from grand jurors in order to bring about a criminal prosecution could be considered unconstitutional. Thankfully, such a broad reading of Rehberg was overly optimistic.

To understand the issue, one must consider the intertwining doctrines at play. A person arrested for a crime she did not commit may have a claim for false arrest. However, the scope of a false arrest claim ends once she is arraigned (meaning, first brought before a judge and advised of the charges). If the person is prosecuted beyond arraignment, her cause of action would be for malicious prosecution. She may also have a claim for denial of a fair trial, but that's a different topic for another time.

To sustain a malicious prosecution claim, a plaintiff must show (i) the defendant caused her to be prosecuted, (ii) without probable cause for the prosecution, (iii) and did so with malice, and that (iv) the charges were eventually terminated in her favor.

Prong number one is satisfied if the defendant officers drafted and forwarded arrest paperwork to prosecutors, and otherwise communicated the (false) facts underlying the arrest to prosecutors, and that the prosecution was initiated based on these allegations. A jury can find malice exists if it believes the officer lied about the circumstances of the arrest, or otherwise was trying to bring about the conviction for an improper purpose. A favorable termination generally means an acquittal, a dismissal on the prosecutor's motion, a dismissal on speedy trial grounds, or any other reason that is not inconsistent with innocence. The tricky point here is probable cause.

When a grand jury issues an indictment, it is presumptively a finding that probable cause exists for the prosecution. A plaintiff can rebut that presumption, but must show that the officers brought it about by falsifying or withholding material evidence, or through some other form of fraud or misconduct. You could be forgiven for concluding that a police officer lying to a grand jury would be precisely the sort of fraud necessary to show that the officer procured the indictment through fraud. And until a few years ago, you'd be right.

But in Rehberg, the Supreme Court concluded that principles of GJ immunity ought to extend to police officers, and thus they could not be sued for their testimony in GJ proceedings, even if demonstrably and deliberately false. They could be criminally charged by the state, but not sued by the target of their lies.

Ecstatic municipal lawyers rejoiced. After all, if you needed to show that the cop lied to or committed a fraud upon the GJ to rebut the presumptive probable cause, but could not sue over that testimony, then surely the existence of an indictment would put the kibosh on any possible malicious prosecution claim.

In response, civil rights lawyers argued, and many district courts agreed, that if the plaintiff could show that the officer procured the indictment by lying to the prosecution well in advance of the presentation to the GJ, and thus the GJ was ultimately misled by the offending officer, the plaintiff would have properly rebutted the presumption of probable cause. Thus, the GJ testimony might be relevant as evidence of the statements the officer had been making to the prosecutor since the arrest, or to confirm that the officer had withheld evidence, but the testimony itself was not the issue. The plaintiff was not suing because the officer had lied to the grand jury, but rather because of all the lies that had caused the prosecutor to present the case for indictment in the first place.

But the spectre of Rehberg continued to haunt malicious prosecution actions as defense counsel sought to muddy the waters by invoking Rehberg at every turn. The Court of Appeals' ruling on January 13, 2015, clearly and definitively cut defendants' arguments off at the knees.

In Coggins, the Second Circuit was presented with, in simplified terms, an arrest of Darryl Coggins by two officers, Craig Buonora and James Vera, for weapons possession. Coggins was prosecuted based on factual claims made by Buonora and Vera to prosecutors. Eventually, the case was presented to a grand jury. Meanwhile, another officer told Coggins's lawyer that the cops were lying. He passed that info to prosecutors, who opened an investigation which resulted in Buonora's arrest, prosecution, and conviction for perjury.

Buonora sought to have the case dismissed, arguing that plaintiff's entire lawsuit turned on the undisputed fact that Buonora lied to the grand jury. This testimony, however undeniably perjurious it may have been, simply could not be the basis for plaintiff's civil action. The Second Circuit, affirming the district court's underlying ruling, agreed, finding that Buonora was immune from any action that turned on the giving of this testimony.

However, to the extent that plaintiff's claims were based on Buonora's falsified police reports and lies told to the prosecutor following the arrest (not to be confused with the lies he may have later repeated when the prosecutor was prepping him to testify, for which he would still be immune), as well as the withholding of truthful, accurate, material, and exculpatory facts, those claims were perfectly fine. The fact that the officer repeated those lies to a grand jury would not protect him from liability for all the other times he had told these lies or withheld the truth.

The Second Circuit noted that to hold otherwise would effectively allow officers to tell all sorts of lies to prosecutors, make evidence up out of whole cloth, and destroy or suppress evidence to further cover up their misconduct and keep the criminal prosecution alive. As long as these officers could get in front of a grand jury, they would be forever shielded from any civil liability, no matter how unconscionable their actions had been. The test articulated by the Second Circuit was fairly simple:

[A district] court should determine whether the plaintiff can make out the elements of his § 1983 claim without resorting to the grand jury testimony.  If the claim exists independently of the grand jury testimony, it is not 'based on' that testimony, as that term is used in Rehberg. 

In other words, if the lies and misrepresentations at issue occurred outside of the grand jury, then plaintiffs' malicious prosecution claims are safe. It's a solid ruling grounded on both policy and Rehberg itself. This ought to help clear the air.