The New York Law Journal recently published an OpEd authored by Alexander Klein, our partner and co-chair of the firm’s division on civil rights litigation.
The article, "Litigators and Courts Should Recognize the Difference Between “Probable Cause” examined the difference in the meaning of the term depending on the context.
From the article:
"Suppose police in Gotham City were investigating a murder, suspected the killer was the Joker, but lacked probable cause to search his hideout. Eager to solve the crime and with the clock of public pressure ticking, the Gotham City Police Department searched the Joker’s hideout without probable cause. Lo and behold, in the Joker’s hideout the police found the victim’s dead body
and then arrested and prosecuted the Joker for murder.
"In a criminal case, the consequence of the illegal search would be straightforward—suppression of the inculpatory evidence as fruit of the poisonous tree and, in all likelihood, dismissal of the criminal case. But would the Joker have a good civil rights case against Gotham City?
"The answer hinges on a deeply under-appreciated fact about 'probable cause' and how it means different things depending upon whether the claim in issue is false arrest or malicious prosecution. That is to say, while the Joker would lack a good claim for false arrest, he would retain a strong case for malicious prosecution.
"The reason why is because the complete defense of 'probable cause' in a false arrest case refers to something different from “probable cause” in the malicious prosecution setting."
Read the entire article in the NYLJ, here (subscription) or attached.
