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In 2014, Larry Thompson was at home with his wife and newborn daughter in their Brooklyn apartment when police banged on the door. When he refused a warrantless search, he was roughed up by police and charged with baseless crimes of obstructing government administration and resisting arrest. Thompson was arrested, jailed, and forced to attend multiple court appearances.

Ultimately, the groundless criminal charges were dismissed in the “interest of justice,” but that doesn’t mean that justice was served. Since Thompson had no opportunity to prove his innocence, he is now prohibited from pursuing a civil suit to hold the police accountable.

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Today the US Supreme Court hears oral arguments in Thompson v. Clark and considers whether a person is barred from bringing certain civil rights actions unless the prior criminal proceeding ended in a manner that affirmatively indicates their innocence. If the court upholds the “indications-of-innocence” standard, more people, particularly Black, Indigenous, and other people of color, will be unable to seek justice against police officers who violate their rights.

In the United States, racialized police misconduct is endemic. Law enforcement officers too often cover up their abuses of BIPOC with false “cover charges” such as resisting arrest. The victims of police cover charges then suffer arrest, jail, court appearances, and all the collateral consequences (legal fees, lost wages and jobs) that come with prosecution. However, because the charges were trumped-up, no meaningful evidence exists, and the case is eventually dismissed.

This might seem like a win, but in jurisdictions that apply an indications-of-innocence standard, it isn’t. Although the falsely accused person no longer has to defend against criminal charges, they can’t seek justice for having been falsely prosecuted in the first place. This leaves the victim of police cover charges with no meaningful recourse.

Criminal prosecution of police officers for misconduct is rare, even in the case of murder. The only avenue available for a victim of police misconduct is a Section 1983 civil rights action. But, in an indications-of-innocence jurisdiction like the Second Circuit (Vermont, Connecticut, and New York) and First Circuit (Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico) a person cannot bring a civil rights action for Fourth Amendment unreasonable seizure pursuant to legal process (malicious prosecution) if their criminal case was dismissed and thus did not end with an affirmative finding of innocence.

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This is what happened in Thompson v. Clark. When Thompson tried to bring a Section 1983 civil rights action, his malicious prosecution claim was thrown out because the earlier dismissal of criminal charges barred any opportunity to prove his innocence.

Although criminal defendants are supposedly presumed innocent until proven guilty, this assumption of innocence isn’t given weight in an indications-of-innocence jurisdiction. A dismissal in the interest of justice or because there wasn’t enough evidence surprisingly isn’t deemed sufficient to indicate innocence.

The indications-of-innocence standard is an insidious procedural loophole that ensures that courts don’t review the civil rights claims of victims of police cover charges. And these victims are disproportionately BIPOC. If the Supreme Court affirms the Second Circuit’s decision in Thompson v. Clark, the indications-of-innocence standard will apply across the entire country.

The parties’ briefs in Thompson v. Clark are silent as to race and racism, but race and racism are central to the indications-of-innocence standard. Amicus briefs filed by the Boston University Center for Antiracist Research and the NAACP Legal Defense Fund highlight this. In the absence of federal legislation addressing racialized police abuses, like the George Floyd Justice in Policing Act, civil rights lawsuits remain a primary method for addressing and discouraging racialized police misconduct. Wrongfully prosecuted people must have their claims heard by courts.

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A more racially equitable approach is available and under consideration by the Supreme Court. The Eleventh Circuit allows a person to bring a Section 1983 civil rights action for malicious prosecution if the prior criminal case was terminated in a way that is not inconsistent with their innocence. Under this alternative rule, Thompson and people maliciously prosecuted in New England could have their proverbial day in court.

The legal mechanisms that allow police abuses of BIPOC are multifold. It isn’t just prosecutors’ reluctance to pursue charges, grand juries’ failures to indict, trial juries’ failures to convict, and judges’ lighter sentencing. It is also a web of seemingly insignificant procedural and technical requirements such as qualified immunity and, even less known, the indications-of-innocence standard.

Caring about racialized police misconduct doesn’t end at recognizing the misconduct itself. We must also recognize the way our legal systems, both criminal and civil, prevent accountability for that misconduct. Without accountability, we will continue to miss opportunities to disincentive police abuse against BIPOC.

Jasmine Gonzales Rose is a professor of law at Boston University and the deputy director of research and policy at the BU Center for Antiracist Research. She co-authored an amicus brief in Thompson v. Clark.

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