Chiaverini v. City of Napoleon

JUSTICE GORSUCH, dissenting.¶verify

Section 1983 performs vital work by permitting individuals to vindicate their constitutional rights in federal court. But it does not authorize this Court to expound new rights of its own creation. As this Court has put it, §1983 does not turn the Constitution into a '''font of tort law.''' Albright v. Oliver , 510 U. S. 266, 284 (1994) (Kennedy, J., concurring in judgment) (quoting Parratt v. Taylor , 451 U. S. 527, 544 (1981)).¶verify

Despite that settled rule, the Court today doubles down on a new tort of its own recent invention—what it calls a “Fourth Amendment malicious-prosecution” cause of action. Ante , at 1; see Thompson v. Clark , 596 U. S. 36, 4344 (2022). Respectfully, it is hard to know where this tort comes from. Stare for as long as you like at the Fourth Amendment and you won’t see anything about prosecutions, malicious or otherwise. Instead, the Amendment provides that “[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated.”¶verify

As its language suggests, the Fourth Amendment supplies nothing like a common-law claim for malicious prosecution. Ante, at 2 (THOMAS, J., dissenting); see Cordova v. Albuquerque , 816 F. 3d 645, 662–663 (CA10 2016) (Gorsuch, J., concurring in judgment). Just consider some of the differences. This Court has long held that the touchstone of the Fourth Amendment is objective reasonableness. But a common-law malicious-prosecution claim focuses on the defendant’s subjective intent. Ante , at 2 (opinion of THOMAS, J.). The Fourth Amendment addresses the permissibility of a seizure. But a common-law malicious-prosecution claim can (and usually does) proceed without one. Ante , at 2–3. A seizure in violation of the Fourth Amendment can (and often does) take place without the initiation of any judicial process. But the whole point of a maliciousprosecution claim is to contest the appropriateness of past judicial proceedings. Ante , at 2. For all these reasons, it’s “pretty hard to see how you might squeeze anything that looks quite like the common law tort of malicious prosecution into the Fourth Amendment.” Cordova , 816 F. 3d, at 663 (opinion of Gorsuch, J.).¶verify

That is not to say no constitutional hook exists for a §1983 claim addressing the malicious use of process. Rather, it seems to me only that such a claim would be more properly housed in the Fourteenth Amendment. See Albright , 510 U. S., at 283 (opinion of Kennedy, J.). After all, unlike the Fourth Amendment, that provision does focus on judicial proceedings, guaranteeing those who come before our courts “due process” of law. See ibid. ; Thompson , 596 U. S., at 43, n. 2; Cordova , 816 F. 3d, at 662 (opinion of Gorsuch, J.). Inhering in due process is a promise that courts will respect, at the least, those “customary procedures to which freemen were entitled by the old law of England.” Sessions v. Dimaya , 584 U. S. 148, 176 (2018) (GORSUCH, J., concurring in part and concurring in judgment) (internal quotation marks omitted). And the common law has long recognized a tort of malicious prosecution to protect against the abuse of judicial proceedings. Albright , 510 U. S., at 283 (opinion of Kennedy, J.).¶verify

Admittedly, a procedural due process claim for malicious prosecution may come with its own set of limitations. After all, when a State provides exactly the tort claim the plaintiff seeks, it provides him with all the process he is due. See id ., at 284; Cordova , 816 F. 3d, at 662 (opinion of Gorsuch, J.). And, consistent with the common law, many States recognize claims for malicious prosecution. Indeed, the relevant State here (Ohio) permits such a cause of action. Notably, too, unlike the tort this Court seeks to cobble together under the aegis of the Fourth Amendment, Ohio’s tort does not require a plaintiff to prove that he was seized. Compare Trussell v. General Motors Corp ., 53 Ohio St. 3d 142, 145–146, 559 N. E. 2d 732, 735–736 (1990), with ante , at 1 (majority opinion). Of course, should a State fail to provide a malicious-prosecution claim to secure his procedural due process rights, or a fair forum for entertaining such a claim, a federal court may need to act to vindicate §1983 and the promise of procedural due process. Cordova , 816 F. 3d, at 665 (opinion of Gorsuch, J.). But in many cases (this one included), a State malicious-prosecution claim may be both easier for a plaintiff to prove than anything the Court today provides and sufficient to ensure any process he is due. Albright , 510 U. S., at 285–286 (opinion of Kennedy, J.); Cordova , 816 F. 3d, at 662 (opinion of Gorsuch, J.).¶verify

For these reasons, I respectfully dissent.¶verify