Malicious Prosecution

Under Georgia law, a criminal prosecution that is pursued maliciously and without probable cause can create a civil cause of action. To state a claim for malicious prosecution, a plaintiff must show (1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has damaged the plaintiff. Malice may be inferred from a lack of probable cause.

A malicious prosecution may also violate the Fourth Amendment and thus create a claim under 42 U.S.C. § 1983. To establish a malicious prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to the elements of Georgia’s common law tort of malicious prosecution. For purposes of a § 1983 malicious prosecution claim, the elements under federal law include: (1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has damaged the plaintiff.

Situations where claims for malicious prosecution have been held viable include:

• where police had no probable cause for prosecution because victims of mugging told police that the plaintiff was not the person who had robbed them (and the arrest report and affidavit submitted to prosecutors contained material misstatements and omissions).
• where a contractor accused a property owner of theft by deception by falsely asserting that the owner refused to pay for a fence, the owner was arrested, but the charges were later dropped. Although the magistrate judge found probable cause to issue the arrest warrant, the judge was not “disinterested” because he had several ex parte meetings with (and gave legal advice to) the contractor, and the judge assisted the contractor in using the threat of criminal prosecution in an attempt to coerce the owner into paying the disputed portion of the bill.

There is some overlap between the state torts of false imprisonment and malicious prosecution. A false imprisonment occurs where there is detention without following a legal process. This means that a false imprisonment ends once the victim is detained under a process, including when the victim is formally arraigned on charges. From that point forward there is a malicious prosecution. The distinction is subtle but important. Damages for a false imprisonment claim cover the seizure through the arraignment. Any damages after arraignment must be based on a malicious prosecution claim, or on the wrongful use of judicial process, rather than detention itself.

We have had success with these types of claims.