Can You Sue The Police For Malicious Criminal Prosecutions?

The Short Answer is “No” Under California State Law, and “Yes” Under Federal Law; Finally. 

JLS in CourtroomCalifornia State Law Provides for Absolute Immunity for Any Public Employee Who Maliciously Prosecutes Another.

The California Law Review Commission was created by statute in 1953, to assist the Legislature and the Governor by examining California law and recommending needed reforms.

In 1963 the California Law Review Commission studied the then existing common law immunities for public employees, including judges, prosecutors and police officers (i.e. absolute Judicial Immunity, Stump v. Sparkman, 435  U.S. 349 (1978)), and absolute immunity for criminal prosecutors (Imbler v. Patchman, 424 U.S. 409 (1975).)  “Common law immunities”, are immunities enjoyed by usually governmental officials from claims or even lawsuits, that were “created” by judicial fiat; by the learned Judges of our state courts and of the federal bench. The word “common law” literally means judge made law.

Police Misconduct Specialties:
  • Excessive Force
  • Concealing Evidence
  • Destroying  Evidence
  • False Arrest
  • K-9 Maulings
  • Malicious Prosecution
  • Police Beatings
  • Police Brutality
  • Police Shootings
  • Whistle Blower Retaliation
  • Wrongful Death

Under federal law, a Public Prosecutor (i.e. Deputy District Attorney, Assistant United States Attorney) is absolutely immune for filing and prosecuting any criminal action. See, Imbler v. Patchman, 424 U.S. 409 (1975) (absolute prosecutorial immunity for filing and prosecuting any criminal action.)

In 1963, when codifying the then existing California common law immunities, when confronting the issue of whether a public employee (usually a police officer) should be liable for attempting to frame another, the California Law Review Commission recommended that there should be no such immunity:

“7. The immunity from liability for malicious prosecution that public employees now enjoy should be  continued so that public officials will not be subject to harassment by “crank” suits. However, where  public employees have acted maliciously in using their official powers, the injured person should not    be totally without remedy. The employing public entity should, therefore, be liable for the damages  caused by such abuse of public authority; and, in those cases where the responsible public employee acted with actual malice, the public entity should have the right to indemnity from the employee.”  California Law Review Commission, Recommendation relating to Sovereign Immunity; Number 1-Tort Liability of Public Entities and Public Employees January 1963; p.817.

Contrary to that recommendation of the California Law Review Commission, that a person who is the victim of an attempted frame-up should have some legal remedy, the California legislature enacted Cal. Gov’t Code § 821.6, that provides for absolute malicious prosecution immunity for any public employee, acting in the course and scope of their employment.

Cal. Gov’t Code § 821.6 Provides:

“821.6.  A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”

This is simply malicious prosecution immunity under California state law for any public  employee, including peace officers, acting in the course and scope of their employment. This section represents an exercise of “sovereign immunity“; “the King can do no wrong.”

The California Courts have bent-over backwards (or “forwards” [sticking it to you], for the body politic) to protect police officers from being liable for damages caused by their attempted framing of persons; including damages for innocents having to sit in jail on trumped-up charges that were almost always brought to justify the unjustified use of force, or brought to justify an officer’s premature arrest of a person.

Frankly Ladies and Gentlemen, this is outrageous, and downright un-American. It’s morally wrong (i.e. “Thou shalt not bear false witness against thy neighbor”), it’s ethically wrong (what could be worse than framing your victim), and it simply should not be tolerated. However, if this author had a nickel for every falsehood testified to by a peace officer in LA County, he would be richer than Bill Gates.

An arrest before investigation often results in a malicious prosecution, because the officer has taken that step from which there is no return; his/her laying hands on you. Once they do that, they will necessarily falsely arrest of you; notwithstanding that they are the perpetrator, and you are the victim.

Personal, peer and institutional / administrative pressures, demand that the peace officer neither admit his/her mistake of law, nor apologize for same. Police agencies never admit that they’re wrong, and never apologize. The mistaken officer now has to defend that decision to arrest you, even if it was based on an honest, but legally insufficient mistake about whether the conduct that he/she accused you of constituted a crime. So, when the District Attorney’s office files a criminal case against you for a crime against the officer, there’s no taking it back. The cop has to lie about something material and inculpatory, to avoid  liability, or he is gone from the department. Period.

There are other officers who simply contrive bogus reports to cover themselves, since you look like you were run-over by a truck, and he/she doesn’t have a hair out of place. So, you have two basic categories of malicious criminal prosecutions:

1) ”The Creepy Cop”. When the cop was the aggressor and knows that he/she is in the wrong, and abuses his/her their authority knows what happened, and composes a fictional account of his encounter with you; orally (i.e. internal affairs interviews [recorded and in writing]; bogus arrest / crime reports, falsely accusing you of committing a crime against him/her, when you’re the victim of his/her crimes against you.)

2) The “Incompetent Cop”; When the cop doesn’t put material false statements of fact in his report (i.e. a bogus report), but doesn’t know that the conduct that he arrested you for is not a crime.

Such a malicious criminal prosecution, is the violating peace officer’s “first bite at the apple”; their first chance to preclude the violated plaintiff (the victim of police misconduct) from suing the violating police officer. A false arrest is legally determined based on what a police officer knew about your conduct and intent, at the time of your arrest. However, notwithstanding that being the case, the Conservatives on the Supreme Court of the United States, and, more recently, the Supreme Court of California, have decided to preclude you from suing for your false arrest, if you’re convicted of the crime. This is so, notwithstanding the fact that your conviction is not a legal determination that there was probable cause to arrest you. See, Heck v. Humphrey, 512 U.S. 477 (1994) and Yount v. City of Sacramento, 43 Cal. 4th 885 (2008.)


As shown above, when the California Legislature rejected the recommendation of the California Law Review Commission, and immunized public employees (acting in the course and scope of their employment) from malicious prosecutions by them; nothing more. Earlier California cases limited the scope of section 821.6 to its obvious meaning; that Section 821.6 only provides immunity for malicious prosecutions; not for other California torts. See, Sullivan v. County of Los Angeles, 12 Cal.3d 710 (1974) (Section 821.6 doesn’t provides immunity for anything other than for a malicious prosecution.)

Finding a new way to stick-it to the public to protect incompetent or corrupt police officers, the California Courts of Appeal expanded, ad nauseam, malicious prosecution immunity to other actions that had never been deemed associated with actual criminal prosecutions in Amylou R. v. County of Riverside, 28 Cal.App.4th 140 (1994) (Government Code Section 821.6 immunity for all police investigations, save false arrest and battery). This “theory” of what police conduct was immunized from civil liability creatively created in Amylou R. v. County of Riverside, was intellectually dishonest, and did nothing other than create a license for California peace officers to lie, cheat and trample your rights.

For example, under Amylou R.’s  expansion of Section 821.6 immunity, the police were immune for perjuring themselves on a search warrant application, to a Judge to get a search warrant for your home. See, Kilroy v. State of California, 14 Cal.Rptr.3d 109 (2004).

It also immunized California peace officers from being held accountable for using force or violence to prevent, dissuade or retaliate against you for exercising your Constitutional rights (save a claim based on a false arrest theory; Gillan v. City of San Marino, 147 Cal.App.4th 1033 (2007)), and for any actions by the police associated with their investigatory functions; even for defamation / libel. See, Ingram v. Flippo, 74 Cal.App.4th 1280 (1999).


On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.


On June 22, 2023 the California Supreme Court overruled Amylou R. v. County of Riverside and held that Cal. Gov’t Code § 821,6 only immunizes California public employees for malicious prosecution claims for action done in the course of their employment, in Leon v. County of Riverside, Supreme Court Case No. S269672.




On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City,  of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in  deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer.  The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. §  1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause.  The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.)  held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.)


In Thompson v. Clark, 596 U.S. _______ (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and  now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6  (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

If you have questions about malicious criminal prosecutions and whether you have a viable malicious prosecution case, please contact the Law Office of Jerry L. Steering for a free telephone consultation.

Good luck,

Jerry L. Steering, Esq.

The Law Offices Of Jerry L. Steering, 4063 Birch Street, Suite 100, Newport Beach, CA 92660, 949-474-1849, (Fax) 949-474-1883,