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St. Thomas Law Review

First Page

533

Document Type

Comment

Abstract

This Comment evaluates the desirability of protecting private defendants who are subjected to Section 1983 liability by virtue of good faith reliance on presumably valid, remedial statutes. Such protection could involve a good faith and/or probable cause defense, or additional pleading burdens for the Section 1983 plaintiff. Section I discusses the facts and reasoning in the recent Wyatt case, as well as the risks it portends for private citizens and attorneys alike who resort to the legal property seizure process--namely property seizure statutes. The Wyatt Court focused on historical analogy, legislative purpose and public policy in determining whether to recognize immunities or defenses relative to 42 U.S.C. § 1983, an otherwise plain statute. Section II provides an overview of the development of the analogous common law torts of malicious prosecution and abuse of process. In light of the fact that a malicious prosecution or abuse of process action failed if the plaintiff could not affirmatively establish both malice and want of probable cause, principles of equity and fairness suggest that an analogous Section 1983 suit should require a similar showing to state a cause of action against a private defendant. Section III proposes the express adoption of, at minimum, a good faith/probable cause defense for private Section 1983 defendants. Moreover, this section particularly advocates additional pleading requirements for Section 1983 plaintiffs who bring action against private defendants. Specifically, heightened pleading requirements, as opposed to a good faith probable cause defense, would operate to preclude unwarranted litigation. Further, a heightened pleading standard will not discourage reliance on presumptively valid state law to address goodfaith disputes, and thus will likely limit the desirability of resorting to self-help.

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