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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
Thus, the Heck requirement that a plaintiff bringing a § 1983 action must prove the unlawfulness of his conviction or confinement largely eliminates the potential flood of frivolous litigation that concerned the Imbler Court.584
(2) The plaintiff must prove that the prosecutor violated the Constitution with a culpable state of mind. Currently, requirements for recovery under § 1983 for malicious prosecution are undefined.585 As the Court has noted, "the extent to which a claim of malicious prosecution is actionable under § 1983 is one On which there is an embarrassing diversity of judicial opinion.'"586 But two points are relatively clear: ( 1 ) the plaintiff must prove a violation of constitutional law; and (2) the plaintiff must prove the defendant acted with a culpable state of mind.
In developing the requirements for § 1983 liability, the Court has consistently looked to analogous common-law principles.587 However, "[although the common law tort serves as an important guidepost for defining the constitutional cause of action, the ultimate question is always whether the plaintiff has alleged a constitutional violation."588 Thus, to establish liability for malicious prosecution under § 1983, the plaintiff must show a violation of constitutional law, not simply a common-law tort cause of action.589
To establish the constitutional violation, the plaintiff must satisfy the state-of-mind requirement imposed by the Court. In developing the elements of constitutional claims, the Court has frequently used state-of-mind requirements to keep liability within appropriate bounds. For example, in prison discipline cases claiming a violation of the Eighth Amendment prohibition against cruel and unusual punishment, the plaintiff must prove that the defendant acted maliciously and sadistically.590 On the other hand, in prison medical cases alleging an Eighth Amendment violation, the plaintiff must prove that the defendant acted with deliberate indifference to serious medical needs.591 In substantive due process cases, the Court imposes the shocking-to-the-conscience requirement, which depends on the factual context.592 In procedural due process cases, the Court requires a culpable state of mind beyond mere negligence.593 By imposing these state-of-mind requirements, the Court strikes a balance between the competing interests of protecting the functioning of the government and the civil rights of individuals.594
While the Court has yet to establish the state-of-mind requirement for § 1983 actions against prosecutors, a related decision suggests that the Court will impose a significant subjective state-of-mind requirement. Specifically, in Heck, the plaintiff alleged that he had been wrongly convicted because a police investigator destroyed exculpatory evidence and introduced false evidence at trial.595 To determine whether the complaint was cognizable, the Court turned to the most analogous common-law tort, malicious prosecution. The Court held that no action would lie unless the criminal proceeding had been terminated in favor of the accused since that was an element of malicious prosecution.596 If the Court adopts this same analogy for the state-of-mind element for § 1983 prosecutorial misconduct cases, plaintiffs will be required to prove that prosecutors acted with malice since that is an element of the common-law tort.597
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