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In federal civil rights litigation, two of the most common claims brought against police officers and municipalities are those for false arrest and malicious prosecution.  For a plaintiff in a false arrest case to prove his claim, he must show, among other things, that the defendant police officer who arrested him did not have probable cause.  For a plaintiff to succeed on a malicious prosecution claim, he must show that the arresting officer lacked probable cause to commence or continue a criminal proceeding.

At first glance, it appears as though these two claims are extremely similar, particularly because they both have probable cause, or the lack thereof, as a requirement for success.  It is extremely common for attorneys and judges dealing with such claims to use the probable cause requirements for each distinct claim interchangeably and to inform juries hearing these types of cases that “if probable cause to arrest the plaintiff existed, then both his false arrest and malicious prosecution claims must fail.”  Despite this practice, it is clear from the authority in the Seventh Circuit that the probable cause standards for each claim are not interchangeable, and it is important for attorneys, adjusters, municipalities and police officers, to understand the differences.

It has long been held that an officer defending himself against a false arrest claim only needs to have probable cause to arrest the plaintiff for some crime, as opposed to the crime for which the Plaintiff was actually arrested.  In Holmes v. Village of Hoffman Estates, the Seventh Circuit held, “Probable cause to believe that a person has committed any crime will preclude a false arrest claim, even if the person was arrested on additional or different charges for which there was no probable cause.”  511 F.3d 673, 682 (7th Cir. 2007).  The same language is used in the Seventh Circuit Pattern Jury Instruction given to juries evaluating a plaintiff’s claim for false arrest.  Seventh Circuit Pattern Jury Instruction, 7.06 (2009).

The malicious prosecution probable cause standard, when compared to the standard for false arrest, is much more narrow.  A jury evaluating a malicious prosecution claim against an officer must determine whether probable cause existed specifically for the offense with which the plaintiff was charged.  Id.  In other words, if a plaintiff had been charged with more than one crime, and then asserted a malicious prosecution claim on both of the charges, the existence of probable cause as to one of the charges would not be an absolute bar to the malicious prosecution claim based on the second charge.  Id.  Therefore, unlike a false arrest claim, in which the existence of probable cause completely obviates the cause of action, a malicious prosecution claim is not always immediately dispatched by the existence of probable cause, so long as a plaintiff can show that he was charged with another crime for which probable cause did not exist.

These distinctions usually become evident in situations when both a false arrest claim and a malicious prosecution claim are asserted at trial, and a jury returns a divided verdict, finding for the defendant officer on the false arrest claim and finding for the plaintiff on the malicious prosecution claim.  Because of the seemingly similar probable cause standards, Defendants in these scenarios are then tempted to file post-trial motions challenging the consistency of these types of verdicts because, after all, “How can there be probable cause to arrest a plaintiff but then no probable cause to charge the same plaintiff?”  According to the Court in Holmes the answer is both simple, and logical:  “An arrested individual is no more seized when he is arrested on three grounds rather than one; and so long is there is a reasonable basis for the arrest, the seizure is justified on that basis even if any of the other grounds cited for the arrest was flawed.  But when it comes to prosecution, the number and nature of the charges matters: The accused must investigate and prepare a defense to each charge, and as the list of charges lengthens (along with the sentence to which the accused is exposed) the cost and psychic toll of the prosecution of the accused increase.”  Id.

In many cases, particularly in cases in which an arrestee is charged with one offense and then asserts false arrest and malicious prosecution claims based on that one arrest and offense, the existence of probable cause to arrest and the existence of probable cause to prosecute essentially amount to the same thing.  However, Holmes makes it clear that the concepts of probable cause, depending on the claim asserted, are not as simple as they appear to be.  Most important for police officers, corporations counsel, municipalities and prosecutors, is that Holmes also makes it clear that the decision to charge a person with a particular offense or offenses and continue the prosecution of that person once he or she is charged, is just as important as the decision to arrest the person in the first place.

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