HOW TO SUE FOR MALICIOUS PROSECUTION OF A CRIMINAL CASE

This article analyzes the legal standard for malicious prosecution in criminal cases and the barriers that must be crossed to successfully bring such a case.

People use the term “malicious prosecution” in two ways.  First, they use it for their friends and family for emotional support or a catharsis effect, to feel better about the stress and uncertainty of being accused of a crime, facing jail time, and losing money.  Second, people use malicious prosecution as an actual lawsuit to bring against law enforcement for the wrongful prosecution of crimes.  Malicious prosecution is actually a rare event when one considers the total number of criminal charges filed.

Common Reasons Underlying Malicious Prosecution in Criminal Cases

Criminal prosecutors falsely accuse or file charges against citizens for crimes they did not commit on an all too frequent basis.  I have seen this done for many reasons.  Some prosecutors are inexperienced and simply file charges whenever a file comes in front of them due to an inability to legally analyze the case.

Other prosecutors charge defendants with crimes that are more serious than what actually what happened.  This is done with the hope that they will later negotiate down the charges to what the prosecutor actually wants.  Sometimes it is for political reasons.  Other times it is spite.  I have even seen false charges filed because of incompetence.

The Test for Criminal Malicious Prosecution

The elements to bring a malicious prosecution in a criminal case are similar but difference than civil cases.  The easiest accurate way to understand the breakdown is through the Missouri Approved Instructions as follows:

First, the prosecutor must have instigated or continued bringing criminal charges against you that resulted in you winning, outright.

Second, that prosecutor must have acted “maliciously” and without “reasonable grounds.”

Third, you must have been damaged in a verifiable way.

Paraphrase of M.A.I. 23.07 (2000 Revised);

Fischer v. Maging Corporation, 631 S.W.2d 902 (Mo. App. 1982).

What Does “Maliciously” Mean?

The term maliciously means a different definition in a criminal case for malicious prosecution than a civil case.  Missouri Approved Instruction 16.01 (2) defines “maliciously” as acting intentionally with an evil motive, or acting with reckless indifference to the rights of others, or acting primarily for a purpose other than bringing an offender to justice.

The Supreme Court of Missouri in the case of Sanders v. Daniel International Corporation, 682 S.W.2d 803 (Mo. banc 1984) made the use of this definition a requirement if you want to get money for a malicious prosecution case arising out of a criminal prosecution.  The Sanders court ruled that “malice in law” is not sufficient for either actual money or punitive damages for a malicious prosecution case arising from a criminal prosecution.

This is different than a case where a civil prosecution for money is involved, which is held that malice in law is sufficient for liability in a civil setting.  See Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (Mo. banc 1986).

What Is “Reasonable Grounds” For Malicious Prosecution?

You must prove reasonable grounds were not available for the prosecution in order to get money from law enforcement for malicious prosecution of you.  Reasonable grounds means the existence of facts which would cause an ordinarily careful person to believe that you were guilty of the offense charged.

The test for reasonable grounds is similar to probable cause.  Analysis of whether reasonable grounds is available has been further explained by courts, such as:

Higgins v. Knickmeyer-Fleer Realty and Investment Co., 74 S.W.2d 805,813 (Mo. 1934); and

Haswell v. Liberty Mutual Ins. Co., 557 S.W.2d 628, 633 (Mo. banc 1977); and

Palcher v. JC Nichols Co., 783 S.W.2d 166 (Mo. App. 1990).

Can I Receive Punitive Damages For My Criminal Malicious Prosecution Case?

Punitive damages are difficult to get.  First, there is the differing standard, requiring you to prove them wrong by “clear and convincing” evidence.  Second, they are disfavored under the law as a matter of policy.  Sanders v. Daniel Int’l Corp., 682 S.W.2d 803, 806 (Mo. banc 1984).

Third, there is an additional standard for punitive damages in malicious prosecution cases where a crime has been alleged.  The Missouri Supreme Court in the case of Sanders ordered that mere legal malice is not enough. Id. To get punitive damages in a malicious prosecution case where the facts are based upon a criminal prosecution, requires evidence of “actual malice” or “malice in fact,” and not merely “legal malice.”

In other words, your criminal prosecution had to have been initiated primarily for the purpose other than bringing you to justice.  Law Enforcement had to have acted without reasonable grounds.  See also King v. Ryals, 981 S.W.2d 151 (Mo. App. 1998).

Why Does the Law Disfavor Malicious Prosecution of Law Enforcement?

The Supreme Court has repeatedly stated all courts should look with disfavor any case to bring law enforcement into check by giving compensation for malicious prosecution.  Sanders v. Daniel Int’l Corp., 682 S.W.2d 803, 806 (Mo. banc 1984).  This is official government policy.

Why is this you may ask?  The courts have stated they are favoring a policy supporting “uncovering and prosecuting crime.”  Sanders at 806; W. Dudley McCarter, Malicious Prosecution Actions Are Not Favored In The Law, 71 J. Mo. Bar 232 (2015).  For this reason, the court in which you file your malicious prosecution case will require strict compliance with the requisite elements we have detailed above.  Edwards v. Gerstein, 237 S.W.3d 580, 583 (Mo. banc 2007).

This is important for you to remember.  Often, victims will exclaim, “it’s obvious; anyone can see what law enforcement was doing.”   You will not get the benefit of people “connecting the dots” for you.  It will need actual, tangible evidence of each and every element.  For example, damages; you will need evidence that you actually lost money, and as a direct result of the prosecution.

How to Get Past Law Enforcement Immunity Arguments for Malicious Prosecution?

The Government does have a qualified immunity from lawsuits, such as section 1983 actions (federal law).  Malley v. Briggs, 475 U.S. 335, 340-41 (1986).  Expect law enforcement to argue immunity.  The prosecution will argue that law enforcement has arguable probable cause.  They may have been mistaken, but that they reasonably thought you committed the crime.   Dowell v. Lincoln County Maryland, 762 F.3d 770, 777 (8^th Cir.  2014); Keil v. Triveline, 661 F.3d 981, 985-86 (8^th Cir. 2011). 

Expect also that the court will lean in the government’s favor on this immunity issue.  However, immunity can be overcome.

Allege and show evidence that the actions of law enforcement violated a clearly established law.  Argue that any reasonable law enforcement official would have known of the legal breach.  Pearson v. Callahan, 555 U.S. 223, 231 (2009); Franks v. Delaware, 438 U.S. 154, 171 (1978).

The Need to Avoid Summary Judgment and How to Win

As you can see, it is very difficult to bring a malicious prosecution case against law enforcement.  This is not a matter where you expect the judge or the jury to “connect the dots” because it seems so obvious that they were wrong and you are right.

The prosecutor’s attorney will merely make a Rule 74.04 motion for summary judgment and ask the court to dismiss your case entirely.  This will work and you will lose unless you plan ahead and have ready solid evidence on each and every element we have described above.

Will My Case Settle?

I would not expect a settlement.  Remember that law enforcement will be represented by the State of Missouri. They will in essence have an unlimited budget.

I would expect a settlement only when it seems certain that they will lose and you will win at trial, and after a lengthy period of litigation.  Public political embarrassment (bad publicity) may help too.

Malicious Prosecution Cases Benefit Society

For these reasons, expect few attorneys to show enthusiasm about bringing a malicious prosecution case.  Still, there are instances where the wrongful act of law enforcement is obvious and provable.  In those circumstances, it is not only a good idea for you personally to bring the malicious prosecution case, but also it is good for society.

You will be a creating cautionary tale for law enforcement so that they do not take advantage of those less powerful than them.  I wish you luck in your efforts.

Matt Hamilton

• Trial Lawyer
• Juris Doctor