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This originally appeared in February of 2010:

Why is it that now that I don’t teach civil rights anymore I see all of these interesting civil rights cases? Here’s one about malicious prosecution. In Parish v. City of Chicago, the Seventh Circuit reaffirmed prior precedent that had held that malicious prosecution cases under § 1983 were to be analyzed as procedural due process cases. Essentially, this follows the reasoning that malicious prosecution essentially theorizes that the defendant’s actions were random and unauthorized acts, rather than a law, governmental policy, or government procedure. And where an injury is caused by a random and unauthorized act, as long as there is a remedy available under state law, there is no cause of action under § 1983 for a violation of due process.

That is what the Supreme Court has said about actions explicitly premised as procedural due process claims, but I’m not sure that malicious prosecution is a procedural due process claim. Malicious prosecution is an intentional tort, and usually claims that a government actor took an action for a prohibited reason are substantive and not procedural due process claims. Only two Supreme Court Justices have advocated this approach, and they glossed over the procedural/substantive distinction.Still, it doesn’t look like the Seventh Circuit will be revisiting that issue any time soon.

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