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Malicious Prosecution Claims in Section 1983 Lawsuits

37 Pages Posted: 21 Nov 2013  

Lyle David Kossis

McGuireWoods LLP

Date Written: October 10, 2013


There is little certainty among the federal courts as to how the tort of malicious prosecution and 42 U.S.C. § 1983 interact. In Albright v. Oliver, the Supreme Court suggested that the Fourth Amendment was the proper vehicle for analyzing malicious prosecution claims in Section 1983 actions. But the continuing confusion among the lower courts is some evidence that the Court’s answer was unsatisfactory. This Note hopes to provide some clarity to this muddied area of the law and explain why the Court’s decision in Albright was wrong. Part I surveys the history of malicious prosecution and Section 1983, as well as the Supreme Court’s opinion in Albright and the subsequent circuit split among the Courts of Appeals. Part II then proceeds to explain why the Court’s decision to use the Fourth Amendment to incorporate malicious prosecution made little sense, and why the Fifth and Fourteenth Amendments provide better alternatives. It also examines the implications of using the different amendments, and whether it matters if these questions are resolved by federal courts. Finally, Part III analyzes two distinct claims made in the literature which rest on the premise that Albright was correct, and explains why there are critical flaws in each of these arguments.

Keywords: Section 1983; Albright; malicious prosecution

Suggested Citation

Kossis, Lyle David, Malicious Prosecution Claims in Section 1983 Lawsuits (October 10, 2013). 99 Virginia Law Review 1635 (2013). Available at SSRN:

Lyle David Kossis (Contact Author)

McGuireWoods LLP ( email )

800 East Canal Street
Richmond, VA 23219
United States

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