On Wednesday, in a case brought by the individuals who were falsely convicted of the assassination of Malcolm X in 1965, Judge Ho denied the government’s motion to dismiss with regard to plaintiffs’ malicious prosecution claims because sovereign immunity is waived under the Federal Tort Claims Act (FTCA).
Under a 1974 amendment to the FTCA, sovereign immunity is waived for malicious prosecution claims arising after the amendment, i.e., for claims arising after March 16, 1974. In his decision, Judge Ho considered for the first time in this court whether a malicious prosecution claim “arises” for the purposes of the FTCA when the prosecution takes place or when the claimant is exonerated. This case offered the unique situation where the wrongful conviction occurred before 1974, but the exoneration occurred after.
Plaintiffs Muhammed Aziz and Khalil Islam (through his estate) were originally convicted in 1965, and spent at least 20 years each in prison. In 2023, the plaintiffs were exonerated after renewed interest in the case, starting with a 2020 Netflix documentary entitled “Who Killed Malcolm X?” that suggested “Plaintiffs were wrongly convicted of Malcolm X’s murder and that the FBI had been aware of the true culprits all along.”
The court held that the government could not assert sovereign immunity here because plaintiffs’ malicious prosecution claims did not arise until they were exonerated:
That leaves the question of when a cause of action for malicious prosecution comes into being. For most intentional torts, the elements of the claim all come into existence around the same time that the tortious conduct occurs. A claim for battery, for example, is available as soon as there is an intent to cause a harmful or offensive contact and that contact actually results. But malicious prosecution is unusual in that one of its elements is a future event extraneous to the tortious conduct of the defendants—namely, favorable termination of the underlying criminal proceedings. Critically, a claim for malicious prosecution is not legally cognizable until the proceedings have terminated in the plaintiff’s favor. For that reason, the statute of limitations “for claims based in malicious prosecution . . . starts to run only when the underlying criminal action is conclusively terminated.” Because a plaintiff cannot state a claim for malicious prosecution until favorable termination of proceedings, the claim cannot be said to come into being, originate, or arise until that time.