In a decision published September 30, 2014, United States District Court Judge O’Toole reversed a jury’s determination that the plaintiff was wrongfully arrested because the defendant participated in Pretrial Probation in Massachusetts State Courts. Kennedy v. Town of Billerica (Civil Action No. 10-11457-GAO).  The decision notes the lack of First Circuit law on this issue, and cites a circuit split regarding whether pretrial probation is the type of “successful termination” that can permit bringing an action for wrongful arrest under.  42 U.S.C. § 1983.

Pretrial Probation is a pretrial diversion program in Massachusetts that permits the entry of dismissal after the successful completion of a period of observation. M.G.L. 276 § 87.  The Judge may condition the dismissal upon completion of certain conditions or may merely require the defendant not be charged with additional crimes during the period of probation.  The defendant makes no admission of guilt.  It is generally viewed as a very favorable outcome for defendants, and the accused will be entitled to dismissal with prejudice should the terms of probation be completed.

With the ruling by Judge O’Toole, practitioners of criminal defense and civil rights now face a difficult ultimatum: accept the often favorable outcome of Pretrial Probation but relinquish the possibility of a future civil rights claim, or proceed to trial with all the associated costs and risks.  Civil rights litigators should expect any case brought following Pretrial Probation will face motions to dismiss as well as the risk that even post-trial motions practice could vitiate a claim.  Meanwhile, criminal defense lawyers should be advising their clients of this potential collateral consequence of a Pretrial Probation outcome.

Coughlin Law Group is actively monitoring these and other developments as our Criminal Defense Group and Civil Rights colleagues collaborate.