CAN PRIVATE ACTORS BE LIABLE IN A CIVIL RIGHTS ACTION?
CAN PRIVATE ACTORS BE LIABLE IN A CIVIL RIGHTS ACTION?
  1. Home
  2.  » 
  3. Firm News
  4.  » CAN PRIVATE ACTORS BE LIABLE IN A CIVIL RIGHTS ACTION?

CAN PRIVATE ACTORS BE LIABLE IN A CIVIL RIGHTS ACTION?

| Oct 25, 2018 | Firm News

Just recently, media accounts of two African-American individuals who were arrested at a Philadelphia “Starbucks” for essentially frequenting the establishment and were doing nothing more than waiting for a friend went viral on the internet.

Apparently, the “Starbuck’s” staff,  out of unfounded fears, called the Philadelphia Police because the two men had not ordered anything.  When the police were summoned to the establishment, “Starbuck’s” personnel swore out their arrests for basically, doing nothing more than exercising their U.S. Constitutional rights to travel, associate, and go where every law abiding citizen has the right to go here in America. The charges were later dropped.  The incident was cited as a major blunder on the part of the “Starbuck’s” corporation.

Reportedly, the “Starbucks” corporation mandated the closing of all their locations for a day of ” racial profiling training” on the issue.  https://www.snopes.com/fact-check/philadelphia-starbucks-arrest/

One day, an individual comes to you and relates that a similar incident happened to him.  He frequented a local coffee shop on a daily basis, enjoyed his coffee and did a little work for a few hours.  Apparently, because of the animosity of the staff there, they summoned the local police to the establishment and swore out arrests against him for trespassing, disturbing the peace, and making terrorists threats.  This individual went all the way to a trial and was acquitted.  The judge in the case noted the utter lack of probable cause and the charging witnesses’ embellishments, fraud, fabrication, and actual perjury.

The prosecuting District Attorney stated they are investigating the matter and may bring criminal charges against these complainants for making false police reports; a violation of Penal Code § 148.5.

This individual states that he had to close his business down and his professional license has been compromised. What are this individual’s legal options in such a matter.

Malicious Prosecution under § 1983

A plaintiff may bring an action under 42 U.S.C. § 1983 to redress violations of his “rights, privileges, or immunities secured by the Constitution and [federal] laws” by a person or entity, including a municipality, acting under the color of state law. 42 U.S.C. § 1983; Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff “must show that the defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995). Malicious prosecution actions are not limited to suits against prosecutors but may be brought, as here, against other persons who have wrongfully caused the charges to be filed. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir.2002).

An individual can bring a federal civil rights lawsuit, not only against the police, but against private actors who wanted him charged and fabricated criminal conduct.  What are the legal issues with such a case?

Lack of Probable Cause

A plaintiff must establish that he was prosecuted without probable cause. In most criminal cases a defendant that is held to  answer on the  charges after a preliminary hearing basically establishes that there was “probable cause.”  We can look to California law to determine the legal effect of the state court’s action because  the relevant elements of the common law tort of malicious prosecution is used in an  under § 1983. Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir.1987); see also Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

In California, as in virtually every other jurisdiction, it is a long-standing principle of common law that a decision by a judge or magistrate to hold a defendant to answer after a preliminary hearing constitutes prima facie — but not conclusive — evidence of probable cause. See Holliday v. Holliday, 123 Cal. 26, 55 P. 703, 704 (1898); Diemer v. Herber, 75 Cal. 287, 17 P. 205, 206-07 (1888); Scannell v. County of Riverside, 152 Cal.App.3d 596, 199 Cal.Rptr. 644, 651-53 (1984); De La Riva v. Owl Drug Co., 253 Cal.App.2d 593, 61 Cal.Rptr. 291, 293-95 (1967); Garfield v. Peoples Finance & Thrift Co., 24 Cal.App.2d 144, 74 P.2d 1061, 1063 (1937); Foster v. Banks, 112 Cal.App. 622, 297 P. 106, 107 (1931); 5 Witkin, Summary of Cal. Law, Torts § 427 (9th ed.1998) (holding defendant to answer is prima facie evidence of probable cause; judgment of conviction is conclusive evidence).

Among the ways that a plaintiff can rebut a prima facie finding of probable cause is by showing that the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith. See, e.g., Williams v. Hartford Ins. Co., 147 Cal.App.3d 893, 195 Cal.Rptr. 448, 452 (1983); Rupp v. Summerfield, 161 Cal.App.2d 657, 326 P.2d 912, 915-16 (1958); Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir.1997). See also Restatement (Second) of Torts § 663; H.D. Warren, Annotation, Malicious prosecution: commitment, binding over, or holding for trial by examining magistrate or commissioner as evidence of probable cause, 68 A.L.R.2d 1168 (1993); 54 C.J.S. Malicious Prosecution § 33 (2003); 52 Am.Jur.2d Malicious Prosecution § 62; W. Keeton et al., Prosser and Keeton on the Law of Torts § 119, at 881 (5th ed.1984). Accordingly, a Superior Court’s decision to hold a plaintiff  to answer after a preliminary hearing would not prevent him from maintaining his § 1983 malicious prosecution claim if he is able to prove the allegations in his complaint that the criminal proceedings were initiated on the basis of the defendants’ intentional and knowingly false accusations and other malicious conduct.

Ordinarily, the decision to file a criminal complaint is presumed to result from an independent determination on the part of the prosecutor, and thus, precludes liability for those who participated in the investigation or filed a report that resulted in the initiation of proceedings. Smiddy v. Varney, 665 F.2d 261,  266-68 (9th Cir.1981). However, the presumption of prosecutorial independence does not bar a subsequent § 1983 claim against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings. See Galbraith, 307 F.3d at 1126-27 (holding that plaintiff’s allegations that a coroner’s knowingly or recklessly false statements led to his arrest and prosecution were sufficient to state a § 1983 claim); Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir.1997) (holding that a probable cause determination “that is `tainted by the malicious actions of the government officials [involved]’ does not preclude a claim against the officials involved.”) (quoting Hand v. Gary, 838 F.2d 1420, 1426 (5th Cir.1988)). See also 5 Witkin, Summary of Cal. Law, Torts § 418 (9th ed. 1998) (“One who procures a third person to institute a malicious prosecution is liable, just as if he instituted it himself.”). On the basis of the allegations in his complaint, a plaintiff  may be able to prove that the defendants’ knowingly false accusations and other similarly conspiratorial conduct were instrumental in causing the filing and prosecution of the criminal proceedings.

Collateral Estoppel Issues.

For similar reasons, the doctrine of collateral estoppel does not bar a plaintiff  from asserting that the County District Attorney lacked probable cause to prosecute him, notwithstanding the Superior Court’s decision to hold him to answer. When an individual has a full and fair opportunity to challenge a probable cause determination during the course of the prior proceedings, he may be barred from relitigating the issue in a subsequent § 1983 claim. Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir.1994). However, collateral estoppel does not apply when the decision to hold a defendant to answer was made on the basis of fabricated evidence presented at the preliminary hearing or as the result of other wrongful conduct by state or local officials. See id. at 290 n. 5; Morley v. Walker, 175 F.3d 756, 760-61 (9th Cir.1999); McCutchen v. City of Montclair, 73 Cal.App.4th 1138, 87 Cal.Rptr.2d 95, 101 (Cal.Ct.App.1999).  Plaintiff’s allegations fall squarely within this exception.

An individual seeking to bring a malicious prosecution claim must generally establish that the prior proceedings terminated in such a manner as to indicate his innocence. Heck, 512 U.S. at 484-85, 114 S.Ct. 2364; Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393, 394-96 (1979); Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335, 338-39 (1941). Similar to other terminations short of a complete trial on the merits, a dismissal in the interests of justice satisfies this requirement if it reflects the opinion of the prosecuting party or the court that the action lacked merit or would result in a decision in favor of the defendant. Minasian v. Sapse, 80 Cal.App.3d 823, 145 Cal.Rptr. 829, 831-32 (1978); Jackson v. Beckham, 217 Cal.App.2d 264, 31 Cal.Rptr. 739, 742-43 (1963); De LaRiva, 61 Cal.Rptr. at 296. When such a dismissal is procured as the result of a motion by the prosecutor and there are allegations that the prior proceedings were instituted as the result of fraudulent conduct, a malicious prosecution plaintiff is not precluded from maintaining his action unless the defendants can establish that the charges were withdrawn on the basis of a compromise among the parties or for a cause that was not inconsistent with his guilt.

According to Police Misconduct:  Law and Litigation (2014) § 9:6 [“A determination of probable cause at a preliminary hearing may preclude a suit for false arrest or for malicious prosecution”].)  “One notable exception to this rule would be in a situation where the plaintiff alleges that the arresting officer lied or fabricated evidence presented at the preliminary hearing.  [Citation.]  When the officer misrepresents the nature of the evidence supporting probable cause and that issue is not raised at the preliminary hearing, a finding of probable cause at the preliminary hearing would not preclude relitigation of the issue of integrity of the evidence.”   (McCutchen, supra, 73 Cal.App.4th at p. 1147.)

Fourth Amendment Rights Issues.

Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), concluded that, even if a plaintiff  could establish that there was not probable cause to prosecute him, his § 1983 claims should be dismissed for another reason: his complaint does not contain any allegations that the defendants had violated his Fourth Amendment rights.

Courts have not interpreted Albright as establishing a rule that Fourth Amendment violations are the only proper grounds for malicious prosecution claims under § 1983. In decisions subsequent to Albright, federal courts have continued to follow  earlier precedents establishing that “malicious prosecution with the intent to deprive a person of equal protection of the law or otherwise to subject a person to a denial of constitutional rights is cognizable under § 1983.” Poppell v. City of San Diego, 149 F.3d 951, 961 (9th Cir.1998) (citing Usher, 828 F.2d at 562); see also Galbraith, 307 F.3d at 1126-27; Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir.1998); Freeman, 68 F.3d at 1189.

The principle that Albright establishes is that no substantive due process right exists under the Fourteenth Amendment to be free from prosecution without probable cause. 510 U.S. at 268, 271, 114 S.Ct. 807 (plurality); id. at 275, 114 S.Ct. 807 (Scalia, J., concurring); id. at 277, 114 S.Ct. 807 (Ginsburg, J., concurring); id. at 282-83, 114 S.Ct. 807 (Kennedy, J., concurring in the judgment and joined by Thomas, J.); id. at 291, 114 S.Ct. 807 (Souter, J., concurring in the judgment). In rejecting Albright’s reliance on substantive due process as the basis for a  malicious prosecution claim, the plurality explained: “Where a particular Amendment `provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, `that Amendment’, not the more generalized notion of `substantive due process,’ must be the guide for analyzing these claims.” Id. at 273, 114 S.Ct. 807 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In Albright, the plurality suggested that the plaintiff in that case might have set forth a proper § 1983 claim had he argued that the state’s pretrial deprivations of his personal liberty violated the Fourth Amendment. Id. at 271, 274-75, 114 S.Ct. 807.

In line with this reasoning, federal courts have held, post-Albright, that a § 1983 malicious prosecution plaintiff must prove that the defendants acted for the purpose of depriving him of a “specific constitutional right,” Freeman, 68 F.3d at 1189, but have not limited that right to one protected by the Fourth Amendment.

The analysis in Poppell does not conflict with Albright. Although in Poppell the adult business operator did not claim a Fourth Amendment violation, we determined that he stated a cognizable § 1983 claim by alleging that a zoning administrator acted maliciously and with the intent to deprive him of specific constitutional rights — “(1) freedom of assembly, (2) freedom of association, (3) freedom of speech, and (4) the right to pursue an occupation” — when she investigated and reported charges that resulted in a prosecution by the San Diego City Attorney. 149 F.3d at 961.

A plaintiff need not assert that he has a substantive due process right under the constitution to be free from malicious prosecution. Nor as in Poppell does would he need to  rely on the Fourth Amendment in his complaint. Rather, he can allege that the defendants intended to  deprive him of other specific constitutional rights by conspiring to have the District Attorney initiate criminal proceedings against him.

A Look at Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004)

In particular, in  Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) plaintiff contended  that the defendants conspired to deprive him of: (1) his First Amendment free speech rights by unlawfully interfering with his campaign for reelection; (2) his right to equal protection under the Fourteenth Amendment by intentionally causing the District Attorney to bring an unfounded action against him because of racial animus towards Arab Americans; and (3) his Thirteenth Amendment rights by using a criminal prosecution to coerce him into repaying a debt.  The federal court held  that the district court erred in ruling, as a matter of law, that First, Thirteenth, and Fourteenth Amendment injuries cannot provide a basis for asserting a malicious prosecution claim under § 1983.  The federal court further concluded  that, because Awabdy properly alleged that the defendants engaged in malicious conduct with the purpose of depriving him of his constitutional rights to free speech and equal protection, he stated a claim for malicious prosecution under § 1983 with respect to the alleged First and Fourteenth Amendment violations.

In Awabdy, the federal court  affirmed the district court’s dismissal of Awabdy’s claim that the defendants intended to deprive him of his Thirteenth Amendment rights. The Thirteenth Amendment does prohibit “peonage — a condition in which the victim is coerced by threat of legal sanction to work off a debt to a master.” United States v. Kozminski, 487 U.S. 931, 943, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988) (citing Clyatt v. United States, 197 U.S. 207, 215, 218, 25 S.Ct. 429, 49 L.Ed. 726 (1905)).  There, however, it was beyond doubt that Awabdy would not be able to prove that the defendants had him prosecuted in order to coerce him to remain in the employment of the City of Adelanto until he worked off a debt. This assertion was directly contrary to Awabdy’s factual allegation that the defendants were trying to end his official service to the city by defeating his reelection efforts. Nor did Awabdy claim that the defendants loaned him the funds that he was subsequently charged with embezzling. Had Awabdy been convicted of embezzling public funds, California could have fined or incarcerated him without violating the Thirteenth Amendment.

First and Fourteenth Amendment Violations.

In addition to its erroneous dismissal of Awabdy’s § 1983 malicious prosecution claim, the district court erred by overlooking Awabdy’s allegations of direct constitutional violations under the First and Fourteenth Amendment. Awabdy’s complaint, liberally construed, raised claims that the defendant city officials made false accusations and otherwise unlawfully conspired against him, with the result that criminal proceedings were wrongfully initiated (1) in order to discourage his political activity and other protected First Amendment conduct as a citizen and an Adelanto city councilmember, and (2) on account of his Arab ethnicity in violation of his Fourteenth Amendment right to equal protection.

To establish that his First Amendment rights were violated, Awabdy had to prove that chilling his political speech was a substantial or motivating factor in the defendants’ wrongful conduct. Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir.1994); see also Karam v. City of Burbank, 352 F.3d 1188, 1194-95 (9th Cir.2003); Butler v. Elle, 281 F.3d 1014, 1027-28 (9th Cir.2002). Awabdy was not merely claiming a “speculative chill due to generalized and legitimate law enforcement initiatives.” Mendocino Envtl. Ctr. v. Mendocino County, 14 F.3d 457, 464 (9th Cir.1994) (internal quotation marks and citation omitted). His complaint contained specific allegations that the defendant public officials knowingly made false accusations and engaged in other wrongful, concerted conduct that resulted, as they had intended, in the institution of an unfounded criminal charge, and substantially infringed his First Amendment rights. These allegations are sufficient to state a claim under § 1983 for violation of his First Amendment rights.

In his Fourteenth Amendment claim, Awabdy alleged  that the defendants violated his right to equal protection because their false accusations and other wrongful actions that led to the institution of criminal proceedings were intentionally discriminatory. According to Awabdy, the defendants wanted to “get” him because he was an Arab-American. Although he alleged  that their goal was to cause the San Bernardino County District Attorney to prosecute him, he does not contend that the four city officials named as defendants violated his rights by performing a prosecutorial function. Rather, his claim is only that the prosecutor would not have initiated the prosecution but for the false reports that the other public officials lodged because of their racial animus.

The federal court sumised that Awabdy’s allegations should not be confused with a selective prosecution claim, for he is not claiming that the defendants prosecuted him under a facially neutral law in a discriminatory manner. Cf. United States v. Armstrong, 517 U.S. 456,  464-68, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); Wayte v. United States, 470 U.S. 598, 609, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); United States v. Arenas-Ortiz, 339 F.3d 1066, 1068-69 (9th Cir.2003).  In Awabdy, indeed, the defendants did not prosecute him at all. They simply provided information, false or fraudulent as it may have been, to those charged with that responsibility. Similarly, Awabdy was  not asking the federal court  “to exercise judicial power over the `special province’ of the Executive,” Armstrong, 517 U.S. at 464, 116 S.Ct. 1480, because he is not challenging the prosecutor’s decision to initiate criminal proceedings. Moreover, in contrast to a typical selective prosecution claim where the target of the enforcement action does not contest that there is probable cause to prosecute, Awabdy argued  that the charges against him were entirely false. Accordingly, in order to prevail under § 1983 on his Fourteenth Amendment claim against the particular defendants involved, Awabdy needed o]nly prove that they purposefully caused the state to institute proceedings against him because of his race or ethnicity, and not, as in a selective prosecution case, that similarly situated members of other, usually majority, groups were treated differently. See Farm Labor Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 535 n. 4 (6th Cir.2002); Pyke v. Cuomo, 258 F.3d 107, 109-10 (2d Cir.2001).

In the federal 9th Circuit, nothing prevented  Awabdy from bringing both malicious prosecution and direct First and Fourteenth Amendment claims in the same § 1983 action. In Poppell, for instance, the 9th Circuit analyzed the adult business operator’s claim of malicious prosecution with the intent to deprive him of specific constitutional rights separately from his claim that he was prosecuted “on account of his exercise of the same rights he invoked in his malicious prosecution theory.” 149 F.3d at 961. And in Freeman, the plaintiff’s failure to prevail on her § 1983 claim of malicious prosecution did not serve to bar her claim that she was prosecuted in violation of her Fourteenth Amendment equal protection rights and in retaliation for exercising her First Amendment “associational” rights. 68 F.3d at 1185-88. Instead, as in Poppell, the 9th Circuit analyzed each claim on its own merits. Accordingly, they  remanded  to the district court with instructions to permit Awabdy to amend his complaint to state separately and specifically the various claims he intends to assert, i.e., a direct First Amendment claim, a direct Fourteenth Amendment claim, and/or a § 1983 malicious prosecution claim.

State Law Claims

The district court in Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) construed Awabdy’s complaint as setting forth supplemental claims of malicious prosecution under California law in addition to his federal claims. It declined to exercise jurisdiction over the supplemental claims because it found the federal claims subject to dismissal. Because the 9th Circuit reversed  the dismissal of the federal claims, they reversed the dismissal of the state claims as well. See Am. Ad Mgmt., Inc. v. Gen. Tel. Co., 190 F.3d 1051, 1060-61 (9th Cir.1999). the 9th Circuit noted that Awabdy’s complaint is less than clear in a number of respects, including whether he is, in fact, asserting supplemental state claims. On remand, the 9th Circuit stated he s hould be permitted to amend his complaint to state separately the state and federal claims as well as the various federal claims under § 1983.

Falsely bringing criminal charges against a citizen is a serious matter and private individuals can be held liable.  A citizen’s rights guaranteed under the U.S. Constitution’s First, Fourth, Fifth, and Fourteenth Amendments can not be capriciously abridged.  If you are faced with such a situation, you need a knowledgeable and skilled attorney to represent your claims.

Robert Rodriguez has litigated malicious prosecution and civil rights claims under 42 U.S.C. § 1983 in the California U.S. District Courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

LEGAL ADVERTISEMENT