Page 21 - FOP Magazine March 2019

Malicious prosecution is a civil tort which may be brought by a plaintiff seeking to recover damages from an unsuccess- ful civil or criminal proceeding that was prosecuted without probable cause and with malice. Malicious prosecution claims are traditionally not favored by the courts and, therefore, these claims are subject to more stringent limits and are only allowed when all requirements for bringing an action have been met.
In Illinois, in order to state a cause of action for malicious prosecution, the plaintiff must establish the following ele- ments: (1) commencement or continuation of civil/criminal proceedings by the defendant; (2) termination of the proceed- ing in favor of the plaintiff; (3) absence of probable cause; (4) malice; and (5) damages. Here, the plaintiff argued that the appellate court applied the wrong standard and that, over the years, the courts have developed three approaches to deter- mining whether the element of commencement or continu- ation has been met. Those approaches could be summarized as (1) the “significant role” test; (2) the “advice and coopera- tion” test; and (3) the “pressure, influence or misstatement” test. Accordingly, if a plaintiff met one of these approaches, the plaintiff would establish that the “commencement or con- tinuation” element was met.
The Illinois Supreme Court held that the relevant inquiry for the courts to consider is whether the police officer proximate- ly caused the commencement or continuance of the criminal proceedings. Furthermore, the three approaches cited by the plaintiff all fell within what is referred to as the “significant role” standard. Accordingly, the Illinois Supreme Court held that liability for malicious prosecution requires determining
whether the defendant’s conduct is both the cause in fact and a proximate cause of the commencement or continuation of the original criminal proceedings. In order to determine whether the defendant’s conduct was the proximate cause, the courts must consider whether the defendant played a signifi- cant role in the plaintiff’s prosecution. The Illinois Supreme Court held that the appellate court’s prior judgment failed to consider whether the defendant officers proximately caused the commencement or continuation of the criminal proceed- ings against the plaintiff by determining whether the defen- dants played a significant role in the criminal proceedings against the plaintiff. Accordingly, the Illinois Supreme Court reversed the appellate court’s judgment and remanded the matter for further proceedings consistent with the Illinois Su- preme Court’s holding.
The good news, however, is that the plaintiff failed to con- vince the Illinois Supreme Court to expand the standard ap- plied by the courts when considering whether a plaintiff has established the “commencement or continuation” element of malicious prosecution. Going forward, plaintiffs who pur- sue malicious prosecution against police officers must show that the defendant officers’ conduct or actions proximately caused the commencement of proceedings against the plain- tiff and, in doing so, must show that the defendant(s) played a significant role in the plaintiff’s prosecution. Fortunately, the standard did not change. In times when many court rulings seem to undermine and hurt law enforcement, this one is wel- comed.
CHICAGO LODGE 7 ■ MARCH 2019 21
d