What’s the Difference between Abuse of Process and Malicious Prosecution?
Which of the following cases fits into the tort of abuse of process?
and…
Which of the following cases fits into the tort of malicious prosecution?
In February 2015, Dr. John Costino and his wife Barbara filed a malicious prosecution lawsuit against Cape May County. He was accused approximately six years prior to the lawsuit of distributing illegal painkillers. He was acquitted in 2012.
In 2007, the case of Pinewood Homes, Inc. v. Harris resulted in the defendant obtaining a judgment for several thousands of dollars. Harris feared the plaintiff, Ritche, wouldn’t pay. So Harris obtained a preliminary injunction against Rictche and all companies he had ownership interests in, including Pinewood Homes. However, Pinewood wasn’t a part of Richie’s lawsuit because Ritchie was only a shareholder. Pinewood then sued Harris for trying to maliciously coerce it into paying Ritchie’s judgment. 
In 2014, a federal jury ruled Homicide Detective Dwayne violated Hephzibah Olivia Lord’s civil rights for maliciously arresting her. The arrest was for a murder she didn’t commit. Her boyfriend allegedly drank an energy drink, vodka, then committed suicide.
Abuse of Process and Malicious Prosecution are similar on the surface, but they have essential differences.
Abuse of Process aka Abu$e of Proce$$
Let’s say someone doesn’t have a reasonable basis to file a lawsuit against you. Maybe he subpoenas you, continuously files motions, or seeks a retaining order. These are examples of abuse of process. Abuse of process occurs when someone uses the legitimate judicial process for reasons not intended.
With this tort, a plaintiff has to prove four elements for a successful claim:
- The defendant used the process
- The defendant had an ulterior motive
- The defendant misused the process
- The plaintiff incurred injuries and damages from the result of the abuse of process
To prove element one, you show the defendant used the “process” such as filing:
- Counterclaims
- Appeals
- Motions for sanction
- Summons requests
- Change of location
-
trying to hold someone on warrants that are based on charges you plan on dropping as they are malicious but you still request them to turn themselves in and be held on the bond for those crimes for which you know have no merit!
Showing facts and circumstances usually determine whether there was an ulterior motive. The court looks at the intent of the plaintiff and defendant. “Having an ulterior motive” is defined as attempting to gain an economic, business, or legal advantage.
A misuse of process generally exists if the defendant:
- Used the process in a way not intended, contemplated, or authorized by law
- Used the process in an intentional way and knew it would be misused
The best way to think about abuse of process is with two words: improper purpose. The defendant had an improper purpose when filing any lawsuit against the plaintiff.
Malicious Prosecution aka Maliciou$ Prosecution
Let’s say you were at work at 4 p.m. on Tuesday. That day an individual robbed a bank near your workplace. It just happens to be where your ex-spouse worked. You have an alibi and witnesses who place you at work. You didn’t commit the crime. In fact, there’s no reasonable way you could have committed the crime. You’re charged and prosecuted for a committing a bank robbery. Later, the charges are dropped or you’re found not guilty. This is referred to as malicious prosecution.
This tort has four elements a plaintiff must show to win her case:
- The plaintiff was prosecuted for a crime she didn’t commit and found not guilty
- No probable cause existed to show the plaintiff was guilty of committing the crime
-
The prosecutor knew no probable cause existed and still continued to prosecute and try to prove guilt
- In some jurisdictions, a plaintiff must also prove she suffered injuries because of the criminal prosecution beyond typical mental distress.
You’ve probably figured out by now which of the cases are abuse of process or malicious prosecution. Just in case you’re not sure:
- Malicious prosecution
- Abuse of process
- Malicious prosecution
Although both torts are similar, they are distinct. As you’ve read, malicious prosecution typically happens after a criminal case where a person was not guilty of the crime. However, they were still prosecuted for it anyway. With abuse of process, an individual is trying to gain an advantage by filing a frivolous lawsuit against someone. source
Malicious Prosecution, Abuse of Process, and False Arrest
People falsely accused of crimes, and prosecuted as a result, have been severely harmed
Malicious Prosecution
Criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:
- charges a person with a crime to cover up police misconduct, such as excessive use of force or false imprisonment;
- intends to punish a person by harassing them with criminal proceedings;
- intends to ruin a person’s reputation by bringing unfounded criminal charges against them; or
- charges a person with a crime to divert attention from the actual perpetrator.
A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.
A person forced to defend a groundless civil suit likewise suffers damages and may be able to recover for malicious prosecution.
To recover on a state-law malicious-prosecution claim, an Ohio plaintiff must prove:
- (a) malice in instituting or continuing the criminal or civil legal proceeding;
- (b) lack of probable cause or reasonable grounds to believe the allegations; and
- (c) termination of the prosecution or civil lawsuit in favor of the accused.
Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.
Relationship to “Abuse of Process” and “False Arrest”
Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.
Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a false-arrest claim.
Malicious Prosecution and False Arrest as a Civil-Rights Violation
In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Therefore, where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.
Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. But here a plaintiff must prove:
- (a) criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
- (b) there was a lack of probable cause for the criminal prosecution;
- (c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
- (d) the criminal proceeding was resolved in the plaintiff’s favor.
What To Do If You Believe You Have Been a Victim of Malicious Prosecution
Especially in this class of cases, usually involving an abuse of power or oversight in the justice system, it can be unclear what options are available. With shaken confidence in the efficacy and access to justice provided by the judicial system, it may appear as if there is nowhere else to turn for help. But this is not the case. source
Lawsuits for Malicious Prosecution or Abuse of Process
If someone has wrongfully sued you or prosecuted you for a crime, you may have a valid malicious prosecution or abuse of process claim.
Malicious prosecution and abuse of process are related types of civil lawsuits where one person (the plaintiff) sues another person (the defendant) for, in a prior case, trying to use the legal system against the plaintiff in an inappropriate manner. The prior case can be either criminal or civil in nature. This article discusses the elements of a malicious prosecution or abuse of process claim.
Difference between Malicious Prosecution and Abuse of Process
While the two claims are similar, malicious prosecution and abuse of process claims have some essential differences.
A plaintiff can sue for abuse of process when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. A plaintiff can sue for malicious prosecution when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she doesn’t have a case. In addition, the plaintiff must have already obtained a “favorable termination” of the defendant’s malicious case (the case was dismissed or there was a ruling in the plaintiff’s favor, for example) before he or she can sue for malicious prosecution.
Essential Elements of Abuse of Process
As we mentioned, a plaintiff can sue for abuse of process when a defendant starts a legal process intending to obtain results for which the process was not designed.
A “legal process” can be any part of a lawsuit, not simply the entire lawsuit. For example, a defendant’s personal injury lawsuit might have been legitimate, but the use of a particular deposition or other smaller, discrete aspect of the lawsuit may not have been. Even though the lawsuit was valid, the plaintiff can still sue for abuse of process based on the illegitimate deposition.
The best way to think of the “improper purpose” requirement in an abuse of process claim is that, although the defendant had a technical right to use the legal process, he or she did so to extort something else from the plaintiff—or example, trying to tie up property in a divorce proceeding in order to get the other spouse to agree to different child visitation rights. It’s worth noting that abuse of process claims are notoriously difficult to prove and are often unsuccessful.
Essential Elements of Malicious Prosecution
A successful malicious prosecution claim usually requires all of the following:
- the defendant began or continued a criminal or civil legal proceeding without reasonable grounds to believe the basis for it (or the allegations made in it)
- the defendant had a purpose other than simply getting a judgment in the proceeding, and
- the proceeding has terminated in the favor of the person that was being prosecuted or sued (i.e. the future plaintiff in the malicious prosecution suit must first win the suit against him or her).
Let’s look at these elements a little more closely.
A Proceeding
A criminal proceeding is any process where the government can punish a person for offenses ranging from homicide to a parking ticket.
A civil proceeding is typically where the plaintiff is not a governmental entity—although the defendant might be—and the plaintiff is suing for money damages or an injunction.
Even if the people bringing the criminal or civil proceeding think they have a winning case and are suing for a legitimate reason when they begin the case, they can be guilty of malicious prosecution if they discover a reason they cannot win during the case, and continue the case for improper motives anyway.
Reasonable Grounds
The person bringing the original prosecution or lawsuit must have reasonable grounds (also called probable cause), i.e. a reasonable person in their place would think that the legal action was legitimate and had a chance of winning.
However, if the person bringing the prosecution or lawsuit knows that the action is illegitimate, there is no need to prove that a hypothetical reasonable person would also think it was illegitimate.
Improper Purpose
Typically, if a lack of reasonable grounds is proved, an improper purpose will be assumed. This means that the plaintiff in a malicious prosecution action does not necessarily need to prove that the defendant had an improper purpose. However, if the defendant can prove that he or she had a proper purpose, the plaintiff will not win.
For example, if a defendant was only doing what his or her attorney recommended, even though the lawsuit had no probable cause, then the defendant may not be liable for malicious prosecution if she unreasonably, but mistakenly thought her lawsuit was legitimate.
Favorable Termination
Finally, the plaintiff in a malicious prosecution suit must have successfully defended against and won the previous illegitimate lawsuit. In other words, if a person was convicted of criminal charges or had to pay damages in a civil lawsuit, he or she probably cannot sue for malicious prosecution based on that criminal or civil legal action. source
Malicious Prosecution and Abuse of Process
Malicious prosecution is a common law intentional tort aimed at actors, whether private or government, which commence or institute, or cause to be commenced or instituted, unwarranted or unjustified legal proceedings against a Defendant. At common law, the elements of a Malicious Prosecution claim included:
- intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal);
- that is brought without probable cause and;
- that action is dismissed in favor of the victim of the malicious prosecution.
In some jurisdictions, the term “malicious prosecution”, which denotes the wrongful initiation of criminal proceedings, is distinguished from the “malicious use of process” which denotes the wrongful initiation of civil proceedings.
In Nevada, the elements of a malicious prosecution claim, as outlined in Chapman v. City of Reno, are similar to the common law elements and are as follows:
- a lack of probable cause to commence the prior action;
- malice;
- favorable termination of the prior action; and
- damages.
Generally, criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial immunity and judicial immunity. However, a malicious prosecution claim will prevail where intentional conduct that rises to the level of either maliciousness or gross or reckless indifference to the consequences of a prosecutor or judges actions can be proved by clear and convincing evidence.
Abuse of Process
Abuse of process is a cause of action sounding in tort arising from one party making a malicious and deliberate misuse or perversion of the courts and the law not justified by the underlying legal action and is to be distinguished from malicious prosecution in that it is aimed at the use and misuse of legal process for illegitimate purposes, regardless of the merit of the underlying claim.
At common law, the elements of an abuse of process claim were as follows:
- the existence of an ulterior purpose or motive underlying the use of process, and
- some act in the use of the legal process not proper in the regular prosecution of the proceedings.
Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution.
In Nevada, the elements required to prevail on an abuse of process claim are similar to those existing at common law: (1) an ulterior purpose other than resolving a legal dispute, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. Kovacs v. Acosta. An “ulterior purpose” includes any “improper motive” underlying the issuance of legal process. See Laxalt v. McClatchy, 622 F. Supp. 737, (D. Nev. 1985).
“Process,” as used here means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court, administrative agency or government entity. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of “process” considered to be capable of abuse.
As discussed above, the distinguishing factor between abuse of process claims and malicious prosecution is the purpose for which the complained of legal proceedings are instituted; generally, the person who abuses process wishes only to harass, molest, bother, annoy, pester or otherwise injure the other by use of the law and courts in such a way and for such a purpose as offends justice, such as an unjustified arrest or an unfounded criminal prosecution. source
Differentiation of Abuse of Process and Malicious Prosecution
Abuse of Process and Malicious Prosecution Lawyer
There are differentiating factors between abuse of process and malicious prosecution. Abuse of process refers to the notion that the plaintiff can sue when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. Malicious prosecution, on the other hand, can sue when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she does not have a case. Within this concept, the plaintiff must have obtained a “favorable termination” of the defendant’s malicious case before they can sue for malicious prosecution.
Abuse of Process
The elements of an abuse of process claim include an ulterior purpose by the defendant/defendants other than resolving a legal dispute, and a willful act in the use of the legal process not proper in the regular conduct of the proceeding. The legal process portion can be within any part of the lawsuit, not simply the entire lawsuit. The ulterior purpose requirement of this notion can be thought up as even though the defendant has a technical right to use the legal process, they did so to extort something else from the plaintiff.
Malicious Prosecution
Malice refers to evil intent, which may be implied if the defendant acted in willful disregard of the rights of the plaintiff, wrongfully acted with a justifiable cause, or acted or omitted a duty betraying the willful disregard of a social duty. Malicious prosecution claims require several components. First, a proceeding. Even if an individual that has brought a criminal or civil proceeding thinks that they can have a winning case, suing for a legitimate reason at the beginning of the case, they can be guilty of malicious prosecution if a reason is discovered that they cannot win during the case, continuing the case for improper motives. Secondly, reasonable grounds is another notion that must be enacted to show malicious prosecution. An individual bringing the original prosecution or lawsuit must have probable cause to which the legal action was legitimate and has a chance of winning. Contrarily, if the individual bringing the lawsuit knows that the action is illegitimate, there is not a need to prove that a hypothetical reasonable person would share the idea that it was illegitimate.
Next, improper purpose is an additional concept that must be displayed. This notion is piggybacked with the