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SCOTUS Helps Revive Malicious Prosecution Claim Against Chicago Police Officers

by Kevin Bliss and David M. Reutter

On July 14, 2022, in a case on remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Seventh Circuit agreed that a “result opposite” was dictated to the opinion it had issued in a malicious prosecution case the year before. It thus reversed a district court’s order that it had previously affirmed and reinstated a lawsuit alleging Chicago police officers violated an arrestee’s Fourth Amendment rights. In so doing, the Court also held that a malicious prosecution claim accrues when the underlying criminal prosecution is terminated without a conviction – and not just when there is a verdict of not guilty.

The case traces back to September 2013, when former felon Keith Smith was a passenger in a car stopped by Chicago Police Department (CPD) Officers Ranita Mitchell and Herman Otero. Their search of the car uncovered a firearm, which was used at a probable cause hearing to charge and jail Smith on a felon-in-possession-of-weapons charge.

After nearly six months in jail, Smith was released on bond on March 29, 2014. He proceeded to a bench trial on July 21, 2016, where the court rendered an acquittal verdict.

Not quite two years later, on July 18, 2018, Smith filed suit in federal court for the Northern District of Illinois, accusing Mitchell and Otero of fabricating their pretext for the traffic stop – that Smith had made a “furtive” movement – and pretending to find a bullet. Proceeding under 42 U.S.C. § 1983, Smith accused the pair of violating his civil rights under the Fourth and Fourteenth Amendments. He also accused the City of Chicago of allowing a “code of silence” to bind its police officers in service to one another’s lies, thereby making the city liable as laid out in Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, (1978).

The district court dismissed the case, saying it was barred by the two-year statute of limitations, which began tolling on the date of his arrest in 2013. Smith then turned to the U.S. Court of Appeals for the Seventh Circuit, which affirmed that decision. Finally, Smith went to the U.S. Supreme Court, which granted Smith’s petition for a writ of certiorari to hear the case.

On April 18, 2022, it vacated the lower court’s judgment for reconsideration in light of Thompson v. Clark, 142 S.Ct. 1332 (2022); that was a case in which the high court said a Fourth Amendment claim for malicious prosecution could proceed so long as the plaintiff’s charges did not result in conviction, whether or not he was determined “not guilty.”

On remand on July 14, 2022, the Seventh Circuit acknowledged Smith’s claim accrued on his acquittal date, less than two years before his claim was filed, so it was timely. Moreover the City’s assertion that Smith’s malicious prosecution claim failed – because the officers found a weapon during their search – was “odd,” the Court said, “and ultimately beside the point.”

“Smith’s claim does not turn on whether officers discovered a firearm,” the Court recalled. “Rather, Smith’s theory is that law enforcement fabricated a story to justify an unlawful search, and had that search never occurred, law enforcement would have lacked probable cause to arrest and detain him.” Because his “seven-month detention (after a probable-cause hearing) was … based on illegally seized evidence knowingly tendered by the defendant police officers,” the Court continued, “legal process has been commenced against the defendant in a way that amounts to an unreasonable seizure under the Fourth Amendment.” See: Smith v. City of Chi., 2022 U.S. App. LEXIS 19447 (7th Cir.).

Defendants requested both reconsideration and then a rehearing en banc before the full Seventh Circuit. But both of those petitions were denied on August 4 and 12, 2022, respectively. See: Smith v. City of Chi., 2022 U.S. App. LEXIS 21590 (7th Cir.); and 2022 U.S. App. LEXIS 22571 (7th Cir.).

The case has now returned to the district court, and PLN will update developments as they are available. Smith is represented by Chicago attorneys Joel A. Flaxman and Kenneth N. Flaxman of the latter’s eponymous firm. See: Smith v. City of Chi., USDC (N.D. Ill.), Case No. 1:18-cv-04918. 

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