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Malicious Prosecution

In blog posts written on September 15, 2013 and September 19, 2013 I discussed the tort of false arrest. Oftentimes this tort gets confused with the tort of malicious prosecution. There are two key difference between the two. First, in a false arrest action the party that committed the wrongful detention or arrest has the burden of proving at trial that it had probable cause for the detention or arrest. In a malicious prosecution action, on the other hand, the party that was wrongfully detained or arrested has the burden of proving the absence of probable cause. As noted in the previous posts, sufficient probable cause to justify an arrest exists where the facts and circumstances allow a reasonable officer to conclude that an offense has been committed.
The second difference between the two torts is that malicious prosecution – but not false arrest – requires proof of “malice” in order for it to be an actionable tort. Malice or malicious means without reasonable cause and for a purpose other than that for which the criminal prosecution is provided and, therefore, out of ill-will, animosity and with a desire to do harm for harm’s sake. Erp v. Carroll, 438 So. 2d 31, 40 (Fla. Dist. Ct. App. 1983). But note that there are two types of malice: (1) actual or subjective malice sometimes called “malice in fact” and (2) legal malice which may be inferred from circumstances such as the lack of probable cause even though no actual ill-will or animosity is shown. For example, if a store merchant signs an affidavit which results in the arrest of a customer for shoplifting when in fact the merchant never saw the customer pocket the item, then the customer has a good case against the store for malicious prosecution. The “malice’ in this case may not be because the store merchant was acting out of ill- will or animosity (although he may in fact have been) but rather because the store merchant acted with gross negligence in accusing the customer of shoplifting without a sufficient basis for doing so.
The following elements are necessary to prevail in a case for malicious prosecution: (1) an original criminal
or civil judicial proceeding against the plaintiff was commenced or continued; (2) the defendant was the legal cause of the original proceeding against the  plaintiff; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the defendant; and (6) the plaintiff suffered damage as a result of
the original proceeding.”
Note that the third element – a bona fide termination in favor of the plaintiff – requires that the plaintiff not have struck a plea deal with the State Attorney’s office. Thus, even a plea deal to make a donation to one’s
favorite charity, or to do volunteer work at a homeless shelter, will result in the malicious prosecution case being dismissed.