What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

ByThe Truth News

May 14, 2023 #Abuse of Process, #False Arrest, #Malicious Prosecution

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

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

Abuse of Process and Malicious Prosecution

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 approval of the reasonable ground’s notion. Plaintiff in a malicious prosecution action does not necessarily need to show that the defendant had an improper purpose, but if defense proved they had proper purpose, the plaintiff will not win. Finally, the last criterion for malicious purpose is favorable termination. Plaintiff in a malicious prosecution suit must have defended against, and won, the previous illegitimate lawsuit. To simplify, if the individual was convicted of criminal charges or had to pay damages within a civil lawsuit, they cannot sue properly for malicious prosecution on the basis of that criminal or civil legal action. source

Malicious Prosecution and Abuse of Process

Both the criminal and civil legal system can be used improperly and for purposes other than intended. If an individual brings a criminal complaint against another person with knowledge that no crime has been committed, a claim of malicious prosecution might arise. Similarly, if an individual brings a civil claim against another person that is frivolous or without a sufficient basis, a claim of abuse of process may be appropriate.

These two separate, but related torts provide means by which a plaintiff may recover for misuse of either the criminal or civil legal system.

Malicious ProsecutionMalicious prosecution arises when an individual or entity uses the legal system to bring a criminal complaint or charge against someone, even though that individual or entity knows that either (1) no crime has been committed; or (2) the person they accuse is not the individual who committed the crime.

A criminal complaint is only found to have been pursued maliciously if it was done intentionally for an improper purpose and lacks any basis in fact. No claim arises where, for example, an individual mistakenly identifies someone as having committed a crime who is later determined to be the wrong individual. Similarly, no claim arises where an individual has actually committed a crime, even if it is reported by someone not out of concern for the underlying criminal offense, but as part of an effort to embarrass or harass that individual for their own personal gain.

Generally speaking, the plaintiff in a malicious prosecution action must have already obtained a favorable result before filing a malicious prosecution suit. An individual who has been found guilty of the underlying criminal offense cannot pursue a civil claim of malicious prosecution against anyone whose actions led to prosecution of the charge.

In summary: To prove malicious prosecution, a plaintiff must prove the conduct of the individual or entity (including the Commonwealth itself) fulfilled the following elements by a preponderance of the evidence (e.g. it is more likely than not):

First, the defendant’s conduct was malicious, and not simply in error.
Second, the defendant instituted or cooperated in the institution of the charges;
Third, the defendant pursued the case without probable cause; and
Fourth, the case was terminated in a manner not unfavorable to the Plaintiff.

The process of filing criminal charges is relatively simple in Virginia. Any individual can file a criminal complaint by swearing out a warrant in front of a magistrate judge, including both law enforcement officers and private individuals. Malicious prosecution can arise from individuals falsely filing charges or the police maliciously targeting an individual or business with knowledge that no crime has been committed by the person the individual or business named.

The requirement that the underlying criminal case end in a manner “not unfavorable” to the Plaintiff means that a civil claim for malicious prosecution cannot be brought until after the criminal prosecution at issue is complete. The outcome of the criminal prosecution may be deemed unfavorable even if the criminal defendant is ultimately found guilty of a different or lesser charge, which is a common result of a plea bargain. If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal.

Importantly, because a claim of malicious prosecution cannot be brought until after the underlying criminal prosecution is complete, the statute of limitations for these claims does not begin to run until that time.

Abuse of ProcessAbuse of process is appropriate when an individual or entity initiates legal proceedings for a purpose the legal process was not designed to produce. This extends beyond the filing of a civil lawsuit; a claim of abuse of process may also arise from reports to administrative agencies or other similar legal reports and filings. Abuse of process can also arise during ongoing civil litigation, such as through the filling of a frivolous counterclaim or by seeking abusive discovery.

The most important element of abuse of process is that a plaintiff show an “improper purpose” to the defendant’s actions. An improper purpose requires a showing that the defendant used the legal system to extort, force, or create some other illegal effect through the use of an otherwise legal process. This may be demonstrated where someone files a lawsuit against an individual for a purpose other than securing the proper adjudication of the claim, such as to force a settlement from a claim known not to be meritorious.

if you believe that you might have a cause of action, especially against a city, county, or the Commonwealth of Virginia, you need to take action as quickly as possible. Notice of these claims are subject to time limits and some of those limits are quite short. Notice of these claims can be required before filing. It is vital to your claim that you contact a lawyer as soon as possible.

SanctionsWhen misconduct occurs in the process of litigation, the appropriate way to address that misconduct is through court-ordered sanctions. Sanctions can include an award of attorneys’ fees and costs, a monetary penalty, or other consequences that the court deems appropriate.

Sanctions can arise when a litigant fails to engage in the discovery process, brings a frivolous claim, pursues a frivolous defense, or engages in other inappropriate behavior during litigation.

The Erlich Law Office can assist you with claims for malicious prosecution and abuse of process. We can also advise your current counsel or become your counsel for sanctions purposes. source

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