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Brooklyn lawyer Cary London recalls Supreme Court argument that helped expand civil rights

December 6, 2022 Rob Abruzzese
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Criminal Defense Attorney Cary London had appeared before Federal District Court Judge Jack Weinstein and was about to get some bad news when the judge stepped down from his bench and walked over to the attorney’s table.

Justice Weinstein told London that he had to rule against him in his malicious prosecution case, but the judge urged London to continue his fight.

“Judge Weinstein, as he was known to do, got off the bench, came down and sat with me at the actual counsel table where he said, ‘Mr. London, I don’t agree with this. I don’t agree that you need actual innocence for malicious prosecution,’” London said. “He said, ‘I urge you to take this further, I urge you to appeal this.’

“So we appealed it, the Second Circuit agreed with (the precedent) so we lost,” London said. “We filed a writ to the U.S. Supreme Court, they agreed to take the case, and decided in our favor 6-3 with Justice Kavanaugh writing the opinion.”

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The precedent that had held up London’s case, Thompson v. Clark, was an old one that said that in order for a criminal defendant to sue for malicious prosecution there needed to be proof of “actual innocence.” London’s client had his case dismissed “in the interest of justice,” a technicality that doesn’t indicate “actual innocence.”

Cary London gave his lecture at the Brooklyn Bar Association in the third floor boardroom in front of about a dozen attorneys in-person and another 50 more who were at home watching over Zoom. Eagle photo by Robert Abruzzese

Looking back, London said he was surprised to see the U.S. Supreme Court ruled in his favor, as the court has drawn a lot of criticism for being too right-leaning in recent years, especially following a court case that struck down Roe v. Wade. In his dissent, one of the known right-wing justices, Justice Samuel Alito, wrote that he disagrees that there should be a cause of action against malicious prosecution at all.

“Justice Alito does not believe malicious prosecution should not even be a cause of action,” London said in disbelief. “That’s how scary this Supreme Court is.”

However, London convinced the U.S. Supreme Court 6-3 that he was right, his client had the right to prove malicious prosecution, and reversed the decision of the lower courts and remanded the case back for retrial.

“They could have just decided the small issue — does an interest-of-justice arrest bar a malicious prosecution case? But they didn’t,” London said. “Putting aside other cases which many of us disagree with, the Supreme Court made the right decision here, 6-3, and Justice Kavanaugh expanded even further. He held in favorable termination of 1983 malicious prosecution claims, the plaintiff only has to establish that the prosecution did not end in a conviction. That is so much better language for plaintiffs and for defendants who become plaintiffs than affirmative of actual innocence.”

Cary London (right) is introduced at the Brooklyn Bar Association by President-elect Joseph Rosato. Eagle photo by Robert Abruzzese

London recently teamed up with attorney Wylie Stecklow, a past president of the Federal Bar Association for the Southern District of New York, for a continuing legal education seminar to discuss Thompson v. Clark that was hosted by the Brooklyn Bar Association on Tuesday, November 29.

In addition to talking about malicious prosecution and Thompson v. Clark, London and Stecklow also covered false arrests, excessive force and the common elements of civil rights cases in their lecture entitled, “Malicious Prosecution after Thompson v. Clark: an Introduction and Update.”

“What you need to file a false arrest or malicious prosecution case are five things — a loss of liberty, state initiated police contact, no warrant at the time of arrest, you need a dismissal, or now an ACD (adjournment in contemplation of dismissal) after Thompson v. Clark, and you need the client to deny the underlying conduct.”

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