Favorable Termination in Minnesota, and What Thompson v. Clark Changed

A criminal defense lawyer calls me every few months with the same question in a different caption. The charge was weak from the start, the client has already lost time and money to it, and the prosecutor has now offered to make it go away — diversion, or a continuance for dismissal, or a stay of adjudication. The client wants to take the deal. The lawyer wants to know whether taking it kills the civil case.

Usually it does. Not always, and not for the reason people assume.

Here is the part that surprises lawyers on both sides of the caption. Since April 4, 2022, the federal favorable-termination showing is the easier one. Thompson v. Clark, 596 U.S. 36 (2022), held that a Fourth Amendment malicious prosecution claim under 42 U.S.C. § 1983 requires only that “the criminal prosecution ended without a conviction.” No affirmative indication of innocence. No explanation from the judge or the prosecutor. Minnesota has never said that about its own tort. Minnesota still asks whether the proceeding “terminate[d] in favor of the defendant,” and the Minnesota decisions applying that phrase are old, sparse, and mostly about civil judgments rather than criminal charges.

So a Minneapolis client who takes a dismissal can have a live federal claim and a Minnesota claim that nobody can confidently price. That is a strange place for the law to be, and it is where the law is.

What does Minnesota require for a favorable termination?

That the prior proceeding ended in the accused’s favor — and Minnesota says almost nothing more than that. The supreme court’s current statement of the tort is one sentence in Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623, 634 (Minn. 2017):

The tort of malicious prosecution has three elements: “(1) the action [must be] brought without probable cause or reasonable belief that the plaintiff would ultimately prevail on the merits; (2) the action must be instituted and prosecuted with malicious intent; and (3) the action must terminate in favor of the defendant.”

That is the whole of it. The court quoted Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. App. 1997), rev. denied (Minn. Oct. 31, 1997), which took it from Jordan v. Lamb, 392 N.W.2d 607, 609 (Minn. App. 1986). The elements themselves, and the genealogy of that sentence, belong to my article on the Minnesota tort. I am here for element three.

Element three is older than the phrasing suggests. Chief Justice Gilfillan stated it in 1879, in a case about a wrongful attachment:

It is not denied that a complaint for maliciously prosecuting an action must show that the action has terminated, and terminated in favor of the party who brings the action for malicious prosecution.

Pixley v. Reed, 26 Minn. 80, 81, 1 N.W. 800 (1879). And the court gave the reason in the next breath, which is the sentence I actually use in briefs: “The right to bring the action complained of as malicious must first be tried, if the defendant in it has the opportunity, in that action.” Id. The element is not a proxy for innocence. It is a rule about where a question gets decided first.

Two consequences follow immediately, and they run in opposite directions.

The claim does not exist until the underlying matter ends. “A right of action for malicious prosecution never arises until the litigation complained of has terminated favorably to the party alleging malicious prosecution.” Virtue v. Creamery Package Manufacturing Co., 123 Minn. 17, 33, 142 N.W. 930 (1913). That is why the limitations clock — whichever period applies, a question worked through in the elements article and in our limitations survey — does not start running while the case is being defended. Favorable termination is not merely an element here. It is the accrual event. It is also the whole practical difference between this tort and abuse of process, which requires no favorable termination and can therefore be pleaded as a counterclaim in the very case that is being abused.

And the element is a gate, not evidence. Clearing it proves nothing about the merits. Minnesota has been explicit about that for more than a century: “The fact of acquittal affords no presumption that defendant did not have probable cause to institute the prosecution.” Hanowitz v. Great Northern Railway Co., 122 Minn. 241, 243, 142 N.W. 196 (1913). A jury verdict of not guilty, returned after a trial, gets a Minnesota plaintiff exactly one thing: standing to sue. Dunham v. Roer, 708 N.W.2d 552, 571 (Minn. App. 2006), is the modern demonstration. The plaintiff there was acquitted of violating a restraining order, and the Court of Appeals said flatly that she “is able to satisfy the third criterion, i.e., the criminal charge resolved in her favor, [but] she failed to establish the first two criteria.” She lost at summary judgment on probable cause and malice.

What Minnesota has actually held is enough

The Minnesota holdings on this element are thin, and I would rather give you all of them than a confident-sounding synthesis.

A prosecutor’s dismissal, with discharge. Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947), is the closest Minnesota case to Thompson on the facts. A warrant issued for a stolen watch; the plaintiff was arrested and jailed; the county attorney investigated, moved to dismiss, and the plaintiff was discharged. On demurrer, the supreme court held the malicious prosecution count good: “In addition to the institution of these proceedings maliciously and without probable cause, we have a clear allegation that such proceedings were terminated in favor of plaintiff.” Id. at 230. No acquittal. No finding of innocence. A dismissal on the state’s own motion, and the count survived.

A grand jury that returns no bill. In Cox v. Lauritsen, 126 Minn. 128, 130, 147 N.W. 1093 (1914), the plaintiff was arrested on a federal complaint and bound over. “The matter was presented to the grand jury at the next term of court, but they returned no indictment and plaintiff was discharged.” The malicious prosecution action then went to a jury and produced a $10,000 verdict. The supreme court took the case away on instigation and probable cause — never on termination.

An acquittal. Polzin v. Lischefska, 164 Minn. 260, 204 N.W. 885 (1925); Youmans v. Berkner, 167 Minn. 67, 208 N.W. 530 (1926); Miller v. Phillips, 182 Minn. 108, 233 N.W. 855 (1930). None of them treats the point as debatable.

A discharge from a non-criminal proceeding. Reiherzer v. Bresky, 170 Minn. 266, 212 N.W. 456 (1927), arose from an insanity petition; the commission discharged the plaintiff and found the petitioner’s claim unfounded. Minnesota does not confine the tort to criminal charges.

Notice what is missing from that list. Not one of those cases required the court or the prosecutor to say why. Minnesota has been functionally at Thompson’s position since 1914 — it simply never had to announce it, because nobody in Minnesota ever argued for the innocence rule that the Second Circuit adopted and the Supreme Court rejected.

What Minnesota has held is not enough

The negative holdings are firmer than the positive ones, which is the usual shape of an element that gets litigated by defendants.

A judgment against you. Behrendt v. Rassmussen, 234 Minn. 97, 103, 47 N.W.2d 779 (1951): “One of the necessary elements for recovery in a malicious prosecution action is that the action terminated in favor of plaintiff. Here it did not terminate in favor of plaintiffs.” The landlord had won the unlawful detainer. That ended it.

A judgment still standing. Martin v. Cedar Lake Ice Co., 145 Minn. 452, 177 N.W. 631 (1920), is worth reading in full because the facts are outrageous and the plaintiff still lost. A discharged bankrupt was sued on a debt the bankruptcy had wiped out, was promised twice that the suit would be dismissed, and got a default judgment entered against him instead, followed by garnishment. He sued for malicious prosecution. The court held he could not maintain it, because the judgment “still remains in full force and effect” — and told him what he should have done: moved to vacate it. Id. at 453.

Martin also states the only exceptions Minnesota recognizes, and they are narrow:

There are a few exceptions to the general rule stated, as, for instance, where an attachment may be procured ex parte and the court in which it issued has no power to set it aside, or where the defendant in the original suit or proceeding had or could have had no opportunity to have a termination thereof in his favor.

Id. at 453–54, citing Swensgaard v. Davis, 33 Minn. 368, 23 N.W. 543 (1885), and Rossiter v. Minnesota Bradner-Smith Paper Co., 37 Minn. 296, 33 N.W. 855 (1887). Read that against Pixley’s rationale and the shape of the rule becomes clear. Minnesota excuses the requirement only when the plaintiff never had a forum in which to win. If there was a motion available and you did not make it, the element is not satisfied and no amount of malice cures it.

A partial win. The Virtue plaintiffs had beaten most of the patent infringement claims against them but had lost on one device by interlocutory decree. The court refused to split the suit, holding the matters on which they failed “are not of a trifling character.” 123 Minn. at 33–34. One live adverse ruling in an otherwise-won case is enough to defeat the element.

A restraining order that issued. Dunham, 708 N.W.2d at 570: “the action did not terminate in favor of appellant because the district court granted relief to respondent and issued the restraining order.”

A dismissal the accused procured or bought. Minnesota has decided this one, and the decisions are old enough that most briefs miss them. Wickstrom v. Swanson, 107 Minn. 482, 120 N.W. 1090 (1909), states it as a point of decision: “Where the termination of a prosecution has been brought about by the procurement of the defendant, or by compromise or agreement of the parties, an action for malicious prosecution cannot be maintained.” The embezzlement charge there was dismissed after the accused’s lawyer agreed to put $1,300 with the court to abide a pending civil suit; the court repeated the rule at 487, then affirmed the withdrawal of the malicious prosecution counterclaim from the jury on want of probable cause. So the rule arrives in Minnesota as a stated point of decision rather than the ground of judgment — and twenty years later it became the ground. Nelson v. National Casualty Co., 179 Minn. 53, 228 N.W. 437 (1929), applied it. The accused paid his accuser $1,108.11, the accuser then wrote the county attorney that restitution was complete and asked that the case be dismissed, and it was. The district court held that “the termination of the prosecution was brought about by a compromise and agreement between plaintiff and defendant, procured by the initiative and efforts of the plaintiff, so that there was no termination thereof in plaintiff’s favor,” id. at 55, and the supreme court — “[i]f the court was right on either ground its order must stand” — sustained that ground and probable cause both, id. at 55, 57.

Survis v. A. Y. McDonald Manufacturing Co., 224 Minn. 479, 491, 28 N.W.2d 720 (1947), restated the rule six weeks after Hoppe, cited Restatement, Torts, § 660, and quoted Jaffe v. Stone for the full version:

[W]here the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties, or solely by the procurement of the accused as a matter of favor, or as the result of some act, trick, or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action.

Survis let its own plaintiff through, because the record did not conclusively show that his attorney had caused the county attorney to dismiss, so the question went to the jury and the jury answered it for him. That is the practical shape of the rule, and it is the single most important thing in this article for a defense lawyer negotiating a disposition. A dismissal your client bought is not a favorable termination in Minnesota. Whether he bought it is a fact question, decided on the record the criminal case left behind.

The dispositions Minnesota has never addressed

This is the part of the law that matters most in practice, and it is a hole.

I have gone through the Minnesota malicious prosecution line from Pixley in 1879 forward — every reported Minnesota decision that cites Pixley, Wickstrom, Hanowitz, Virtue, Martin, Nelson, Hoppe, Survis, Behrendt, Jordan, Kellar, Stead-Bowers, Dunham or Leiendecker, across the Minnesota Reports and the Northwestern Reporter. No Minnesota appellate decision holds whether any of the following is a termination in favor of the accused. Not one addresses the question.

• A dismissal after pretrial diversion under Minn. R. Crim. P. 27.05 or Minn. Stat. § 401.065.
• A continuance for dismissal.
• A stay of adjudication, whether the statutory kind under Minn. Stat. § 152.18 or the general kind.
• A dismissal on a procedural or technical ground: speedy trial, defective complaint, a successful suppression motion that guts the state’s case.

That is not a gap I am inferring from silence in a treatise. It is a gap in the reported decisions, and I state it as a negative because the alternative — pretending Minnesota has an answer — is how lawyers get surprised at summary judgment.

Notice what is not on that list. A dismissal by compromise or settlement is not there, because Minnesota answered that one in 1909 and again in 1929 and 1947, and the answer is no. Wickstrom, Nelson, and Survis are the closest analogies a court will have when it finally reaches diversion or a stay of adjudication, and every disposition still on the list is a cousin of the one Minnesota has already rejected. That is the direction I would expect the law to run, and it is the reason I do not tell a client that a bargained dismissal preserves his lawsuit.

What Minnesota does have is the underlying criminal law, and the criminal law is not neutral on these questions.

Diversion comes with a finding that will end your civil case. A prosecution may be suspended and later dismissed under Rule 27.05 only if, among other things, “the court finds a substantial likelihood of conviction and that the benefits of rehabilitation outweigh the harm to society from suspending prosecution.” Minn. R. Crim. P. 27.05, subd. 1(1)(d). Sit with that. To get the diversion your client wants, a Minnesota judge must find that the state would probably have convicted him. The charge then dies — “The charges must be dismissed one month after the suspension period specified in the agreement expires unless the prosecutor earlier moved to terminate the agreement,” subd. 6(A), and “[i]f the court dismisses the charge under this rule, the defendant cannot be prosecuted for it,” subd. 6(C) — so the case has plainly ended without a conviction. It has also ended with a judicial finding that is the near-opposite of an affirmative indication of innocence, and that finding sits in the file waiting for defense counsel in the civil case to attach it to a summary-judgment motion on probable cause.

The statutory definition says the same thing from the prosecutor’s side. Pretrial diversion is “the decision of a prosecutor to refer an offender to a diversion program on condition that the criminal charges against the offender will be dismissed after a specified period of time, or the case will not be charged, if the offender successfully completes the program.” Minn. Stat. § 401.065, subd. 1(2). It is a bargain, not a vindication.

A statutory stay of adjudication starts with a finding of guilt. Minnesota Statutes § 152.18, subdivision 1, lets a court defer prosecution for certain first-time drug offenders — but only “for any person found guilty, after trial or upon a plea of guilty, of a violation” of the enumerated possession offenses. § 152.18, subd. 1(a). The court then acts “without entering a judgment of guilty and with the consent of the person,” and on successful completion “shall discharge the person and dismiss the proceedings against that person.” § 152.18, subd. 1(c). The statute even declares the result is not a conviction: “The discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose.” Id.

Do not read that sentence as a gift to a future civil plaintiff. It is a disability-relief provision — it stops the state from treating the disposition as a conviction against the defendant. It says nothing about whether a proceeding that opened with a guilty plea “terminate[d] in favor of the defendant” for purposes of a tort. I would not want to argue that it did.

Minnesota’s general definition of conviction points the same way. “‘Conviction’ means any of the following accepted and recorded by the court: (1) a plea of guilty; or (2) a verdict of guilty by a jury or a finding of guilty by the court.” Minn. Stat. § 609.02, subd. 5. A stay of adjudication is designed to sit just outside that definition. It is a narrow ledge to build a civil case on.

A continuance for dismissal is not in the rules at all. I checked every rule in the Minnesota Rules of Criminal Procedure, Rules 1 through 37. The phrase “continuance for dismissal” appears nowhere in them. The statutes come closer, and what they say is telling. Minnesota Statutes § 609.132 is headed “Continuance for Dismissal,” and it is one sentence long, enacted in 1994 and never amended since: “The decision to offer or agree to a continuance of a criminal prosecution is an exercise of prosecutorial discretion resting solely with the prosecuting attorney.” The legislature said who decides. It said nothing about what the disposition means, what conditions may attach, or what it does to anything afterward. The CFD is therefore a creature of practice and negotiation, which means its terms are whatever the parties wrote — and what the parties wrote is what a civil court will read. A CFD conditioned on the client’s good behavior, restitution, or an admission is a compromise. A CFD that simply parks the case for ninety days and then dismisses it is much closer to Hoppe.

The Minnesota rule Thompson would have made unnecessary

Thompson turned on the fact that nobody explained anything. The Brooklyn prosecutor moved to dismiss and did not say why; the trial judge dismissed and did not say why; and the Second Circuit’s rule meant Larry Thompson lost because of that silence. The Court’s answer was that a plaintiff’s redress “cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed.”

Minnesota removes the fortuity. Rule 30.01 of the Minnesota Rules of Criminal Procedure:

The prosecutor may dismiss a complaint or tab charge without the court’s approval, and may dismiss an indictment with the court’s approval. The prosecutor must state the reasons for the dismissal in writing or on the record. In felony cases, if the dismissal is on the record, it must be transcribed and filed.

Minn. R. Crim. P. 30.01. Rule 30.02 lets the court dismiss for the prosecutor’s unnecessary delay and demands no explanation, but the prosecutor’s own dismissal — which is how these cases actually end — carries a reason on its face. There is no such thing, properly done, as an unexplained prosecutor’s dismissal in a Minnesota criminal case. That cuts both ways, and lawyers consistently guess wrong about which way it cuts harder. The reason is in the file. If the reason is “the complaining witness recanted” or “laboratory results exclude the defendant,” a Minnesota plaintiff walks into his civil case with a prosecutor’s own written statement doing the work that Larry Thompson had to do without. If the reason is “resolved by diversion agreement” — and the comment to Rule 30 tells prosecutors that “[s]tated reasons for dismissal under Rule 30.01 may include satisfactory completion of a pretrial diversion program” — the plaintiff walks in holding a document that says he made a deal.

I have never had a Minnesota criminal file where the stated reason was irrelevant to the civil case. Get it right when it is written, because you will not get to rewrite it later.

Thompson, Heck, and McDonough are three different rules

These three get blended together in briefs constantly, including by lawyers who have read all three. They do different jobs.

Thompson v. Clark, 596 U.S. 36 (2022) — what counts as favorable. Larry Thompson’s sister-in-law, who the Court noted “apparently suffered from a mental illness,” called 911 and claimed he was abusing his one-week-old daughter. The marks on the baby were diaper rash. Officers entered without a warrant, and Thompson was charged with obstructing governmental administration and resisting arrest, held two days, and released. The charges were dismissed before trial with no explanation. The Second Circuit required an “affirmative indication of innocence” and threw the claim out. The Supreme Court reversed 6–3:

To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under §1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction.

The method matters as much as the holding. The Court looked to “the elements of the most analogous tort as of 1871 when §1983 was enacted,” found that in 1871 a favorable termination meant only that the prosecution was over and could not be revived, and refused to import the 1976 Restatement’s innocence gloss because the Restatement “did not purport to describe the consensus of American law as of 1871, at least on that question.” The favorable-termination requirement, the Court said, serves “multiple purposes,” and it named exactly three: “(i) it avoids parallel litigation in civil and criminal proceedings over the issues of probable cause and guilt; (ii) it precludes inconsistent civil and criminal judgments where a claimant could succeed in the tort action after having been convicted in the criminal case; and (iii) it prevents civil suits from being improperly used as collateral attacks on criminal proceedings.” Every one of those purposes is satisfied the moment a conviction becomes impossible. None of them requires anyone to say the defendant was innocent.

Read what Thompson did not do. It did not decide whether the federal claim requires malice: “We need not decide whether a plaintiff bringing a Fourth Amendment claim under §1983 for malicious prosecution must establish malice (or some other mens rea) in addition to the absence of probable cause.” Slip op. at 6 n.3. It did not relax the seizure requirement: “Because this claim is housed in the Fourth Amendment, the plaintiff also has to prove that the malicious prosecution resulted in a seizure of the plaintiff.” Slip op. at 5 n.2. And it expressly left probable cause, seizure, and qualified immunity for remand. Those elements are the Eighth Circuit’s problem, not mine here; where a Minnesota plaintiff has both a state tort and a federal claim, the difference between the two matters at least as much as the shared vocabulary.

The dissent deserves more attention than it gets. Justice Alito, joined by Justices Thomas and Gorsuch, would have held that no malicious prosecution claim lies under the Fourth Amendment at all:

Today, the Court creates a chimera of a constitutional tort by stitching together elements taken from two very different claims: a Fourth Amendment unreasonable seizure claim and a common-law malicious-prosecution claim.

His point about the favorable-termination element specifically is sharper than the rhetoric: if the majority’s tort may not require malice, then it is not malicious prosecution, and “if the Court’s new tort has nothing to do with malicious prosecution, what possible reason can there be for borrowing that tort’s favorable-termination element?” That is a real question, and nobody has answered it. It is also the reason I would not assume the federal element will stay this permissive forever.

Heck v. Humphrey, 512 U.S. 477 (1994) — a bar, not an element. Heck is about people who were convicted. A prisoner serving fifteen years for manslaughter sued prosecutors and an investigator under § 1983 for destroying exculpatory evidence and using an unlawful voice identification. The Court held:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.

512 U.S. at 486–87. The operative test is whether “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487. If it would not, the claim proceeds. Heck itself says so, and gave the example: a suit for damages from an unreasonable search whose fruits were admitted lawfully or harmlessly is not barred even for a convicted plaintiff. Id. at 487 n.7.

Three distinctions to keep straight. Heck is not limited to malicious prosecution — it reaches any § 1983 theory that would unravel an outstanding judgment. Heck is not satisfied by a dismissal, because there is nothing to invalidate; it applies when a conviction exists. And Heck borrowed malicious prosecution as the “closest analogy,” 512 U.S. at 484, precisely because malicious prosecution “permits damages for confinement imposed pursuant to legal process” — an analogy Justice Souter attacked in his opinion concurring in the judgment, id. at 493–96, and which Justice Alito attacked again from the other direction in Thompson.

McDonough v. Smith, 588 U.S. 109 (2019) — a clock, not a gate. Edward McDonough was a county elections commissioner prosecuted twice on forged-ballot charges by a specially appointed prosecutor who, he alleged, fabricated evidence against him. The first trial ended in a mistrial; the second ended in acquittal on December 21, 2012. He sued on December 18, 2015 — inside three years of the acquittal, outside three years of the fabrication. The Second Circuit called it untimely. The Supreme Court reversed and held the limitations period began at the favorable termination, reasoning that there is no “complete and present cause of action” to bring a fabricated-evidence challenge “while those criminal proceedings are ongoing.”

McDonough is an accrual decision. It does not add an element to any claim; it answers when the clock starts on one. Do not cite it for what a favorable termination is — it takes an acquittal as given and never reaches the question Thompson later decided. Do cite it when a defendant argues your § 1983 claim expired while your client was still standing trial. Minnesota’s borrowed limitations period for § 1983 claims, and how McDonough and Wallace v. Kato, 549 U.S. 384 (2007), split the false-arrest and malicious-prosecution clocks, are covered in our § 1983 limitations article.

What should a defense lawyer refuse to agree to?

A stipulation to probable cause, a recited concession of guilt, and a release of civil claims. Here is the rest of it, stated as I would state it on the phone.

Rank the dispositions honestly. From best to worst for a later civil claim: an outright dismissal with a stated reason that reflects on the merits; a dismissal for want of probable cause after a contested omnibus hearing; an acquittal; an unconditional dismissal with a neutral stated reason; a bare continuance for dismissal with no admission and no conditions; a conditional continuance for dismissal; diversion; a stay of adjudication. The last two are, in my judgment, close to fatal — not because they end in a conviction, but because of what the court had to find and what the client had to say to get there.

Do not stipulate to probable cause to get a deal. It costs the client nothing in the criminal case and costs him the entire civil case. The same goes for any recited concession that the state’s evidence would have supported a conviction, and for any agreement that the officers acted reasonably.

Do not sign a release, and do not buy the dismissal. Prosecutors and city attorneys in Minnesota sometimes condition a dismissal on a written waiver of civil claims against the arresting agency. That is a defensible thing for a city to ask for and a catastrophic thing to give away without pricing it. It is also worse than it looks, because under Wickstrom, Nelson, and Survis a dismissal obtained by the accused’s own procurement or by agreement of the parties is not a favorable termination at all — the release may not be the only thing your client gave up. If he has a real claim, the release is the consideration. Negotiate it as such, or refuse it and litigate the charge.

Push the Rule 30.01 statement. The prosecutor has to state a reason. You are entitled to ask that the reason be accurate and specific, and to put your objection on the record if it is not. “Dismissed in the interests of justice” is worth nothing to your client later. “Dismissed; complaining witness has recanted and no corroborating evidence exists” is worth a great deal.

Tell the client the trade out loud. A stay of adjudication that keeps a nurse’s license or a green card is worth more than a speculative tort claim, and if that is the client’s judgment it is the right answer. What I will not do is let a client take it without knowing that he is probably giving up the lawsuit. Be candid about the price of the disposition he wants. That conversation takes four minutes and it is the difference between a client who made a choice and a client who was surprised.

Watch the two clocks. The Minnesota tort does not accrue until the underlying matter ends in the client’s favor, Virtue, 123 Minn. at 33, and the federal claim’s accrual is governed by McDonough and Wallace. They are not the same clock and they can start on different days. Calendar both from the date of disposition and work backward.

Where this leaves a Minnesota plaintiff

Minnesota has an old, sound, and under-developed rule. Pixley explains what the element is for; Hoppe and Cox show that a dismissal or a no-bill will carry it; Martin and Behrendt show that an unvacated adverse judgment will not; Wickstrom, Nelson, and Survis show that a dismissal the accused procured or paid for will not; and the excuse in Martin is limited to the plaintiff who never had a forum. Beyond that, on the dispositions that account for most of the criminal cases resolved in this state every year, the Minnesota reports are silent.

That silence is an opportunity for whoever briefs it well, and Thompson’s reasoning is the best material available for the job — not because it binds a Minnesota court on a Minnesota tort, but because it argues from the 1871 common law that Minnesota’s own cases were applying in 1879 and 1914. The Minnesota Supreme Court has never adopted the innocence rule and has never had reason to. It should not adopt it now.

If you are the one holding the disposition, though, none of that helps you. Decide before you sign.

Where Madgett Law, LLC fits

Madgett Law, LLC handles malicious prosecution, false arrest, and § 1983 claims arising out of Minnesota criminal cases, and we consult with criminal defense counsel before a case is resolved, which is the only time the advice is worth anything. In practice the work is three questions asked in this order: how did the charge actually end and what does the Rule 30.01 record say, does that disposition satisfy the state element and the federal one (they are not the same), and is there a seizure and a want of probable cause worth proving once the gate is cleared. If you are a defense lawyer weighing a diversion, a continuance for dismissal, or a stay of adjudication for a client who may have a civil claim, call 612-470-6529 or send us a message before the hearing, not after.

Sources: Thompson v. Clark, 596 U.S. 36 (2022) (No. 20–659), slip opinion from supremecourt.gov — holding that a plaintiff “need only show that his prosecution ended without a conviction” (slip op. at 2, 11); the three purposes of the favorable-termination requirement (slip op. at 7); the “fortuity” passage and rejection of the 1976 Restatement gloss (slip op. at 10–11); the reservation of malice (slip op. at 6 n.3) and the seizure requirement (slip op. at 5 n.2); Alito, J., dissenting, at 1, 12. Heck v. Humphrey, 512 U.S. 477 (1994) — favorable termination as an element of the common-law tort (at 484); the invalidation holding (at 486–87); the “necessarily imply the invalidity” test and the search example (at 487 & n.7); Souter, J., concurring in the judgment (at 493–96). McDonough v. Smith, 588 U.S. 109 (2019) (No. 18–485), preliminary print from supremecourt.gov — procedural history (at 112–14); accrual at favorable termination and the “complete and present cause of action” passage (at 119–20); U.S. Reports page assignment confirmed against the Court’s own slip-opinion table. Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623, 634 (Minn. 2017) — the three elements. Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. App. 1997) — same formulation. Pixley v. Reed, 26 Minn. 80, 81, 1 N.W. 800 (1879) — the element and its rationale. Virtue v. Creamery Package Manufacturing Co., 123 Minn. 17, 33–34, 142 N.W. 930 (1913) — accrual and partial termination. Martin v. Cedar Lake Ice Co., 145 Minn. 452, 453–54, 177 N.W. 631 (1920) — unvacated judgment; the narrow exceptions. Behrendt v. Rassmussen, 234 Minn. 97, 103, 47 N.W.2d 779 (1951) — adverse judgment defeats the element. Wickstrom v. Swanson, 107 Minn. 482, 487, 120 N.W. 1090 (1909) — termination procured by the accused or by compromise or agreement of the parties will not support the action; Nelson v. National Casualty Co., 179 Minn. 53, 55, 57, 228 N.W. 437 (1929) — same, applied to a charge dismissed after the accused paid his accuser; Survis v. A. Y. McDonald Manufacturing Co., 224 Minn. 479, 491, 28 N.W.2d 720 (1947) — rule restated, citing Restatement, Torts, § 660 and quoting Jaffe v. Stone, 18 Cal. 2d 146, 152, 114 P.2d 335 (1941), as quoted in Survis. Hoppe v. Klapperich, 224 Minn. 224, 230, 28 N.W.2d 780 (1947) — prosecutor’s dismissal and discharge. Cox v. Lauritsen, 126 Minn. 128, 130, 147 N.W. 1093 (1914) — no indictment and discharge. Hanowitz v. Great Northern Railway Co., 122 Minn. 241, 243, 142 N.W. 196 (1913) — acquittal raises no presumption on probable cause. Dunham v. Roer, 708 N.W.2d 552, 570–71 (Minn. App. 2006) — restraining order issued is not a favorable termination; acquittal satisfies the third element only. Polzin v. Lischefska, 164 Minn. 260, 204 N.W. 885 (1925); Youmans v. Berkner, 167 Minn. 67, 208 N.W. 530 (1926); Miller v. Phillips, 182 Minn. 108, 233 N.W. 855 (1930); Reiherzer v. Bresky, 170 Minn. 266, 212 N.W. 456 (1927) — dispositions treated as favorable terminations without discussion. Stead-Bowers v. Langley, 636 N.W.2d 334, 341 (Minn. App. 2001) — some formal legal action must be instituted. Swensgaard v. Davis, 33 Minn. 368, 23 N.W. 543 (1885), and Rossiter v. Minnesota Bradner-Smith Paper Co., 37 Minn. 296, 33 N.W. 855 (1887), as cited in Martin for the exceptions. Wallace v. Kato, 549 U.S. 384 (2007), as cited in McDonough and in the Thompson dissent. Minn. R. Crim. P. 30.01 (prosecutor must state reasons for dismissal), Rule 30.02 (dismissal by the court for unnecessary delay), and comment to Rule 30 (diversion as a stated reason); Minn. R. Crim. P. 27.05, subd. 1(1)(d), subd. 6(A), (C) (pretrial diversion; substantial-likelihood-of-conviction finding; automatic dismissal), all from revisor.mn.gov court rules. Minn. Stat. § 609.132 (continuance for dismissal is prosecutorial discretion; enacted 1994 c. 636, art. 2, § 15, never amended); § 401.065, subd. 1(2) (definition of pretrial diversion); § 152.18, subd. 1(a), (c) (deferred prosecution requires a finding of guilt or guilty plea; discharge not deemed a conviction); § 609.02, subd. 5 (definition of conviction). This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no outcome is promised or implied.