DECISION BY THE SECOND CIRCUIT COURTS OF APPEALS ALLOWS PEOPLE IN NY, CT & VT TO SUE POLICE FOR MALICIOUS PROSECUTION EVEN IF THEY TAKE A 'DEAL' THAT DISMISSES FALSE OR WEAK CRIMINAL CHARGES ON CONDITION THEY STAY OUT OF TROUBLE FOR A TIME
Occupy Wall Street protesters arrested for protesting on the Brooklyn Bridge, after the NYPD let them onto the Brooklyn Bridge, Oct. 1, 2011. Photo Credit: JB Nicholas.
MALONE, NEW YORK Nov. 10, 2026
For the last 36 years, people falsely arrested in New York had to demand a trial and be acquitted to preserve their right to sue the police for damages. No longer.
People who accept and successfully complete what the law calls an "adjournment in contemplation of dismissal," or ACD, can now sue for malicious prosecution under a decision from the Second Circuit Court of Appeals handed down Tuesday.
The Nov. 10 decision in Brill v Ulster County, No. 25-2432, applies not just in New York, but in Connecticut and Vermont as well—the other two states covered by the Manhattan-based Second Circuit.
The decision will affect cases where the defendant alleges they were arrested in violation of a constitutional right, typically protesters, or where evidence of guilt is sparse.
Under the Second Circuit's 1980 decision in Singleton v City of New York, arrestees who accept ACDs couldn't sue the police officers who arrested them for malicious prosecution in federal court unless prosecutors dismissed the case outright or they were acquitted after a trial.
Based on Singleton, prosecutors in New York usually protected police from lawsuits by making the arrestee accept an ACD instead of dismissing a bad case outright. An ACD isn't a criminal conviction. It's a non-criminal "disposition" requiring dismissal of the charges if the person stays out of trouble for a specified period of time, usually a year or six months.
A person doesn't "plead guilty" to an ACD. They only agree to stay out of trouble for the specified period of time. If the person stays out of trouble, the case is dismissed. If not, the prosecutor and judge decide whether to prosecute the original case.
On Tuesday in Brill, the Second Circuit explicitly overruled Singleton based on the US Supreme Court's 2022 decision in Thompson v Clark, where the Supreme Court held Americans can sue for malicious prosecution "so long as the prosecution ended without a conviction.”
Given the Supreme Court's decision in Thompson, the Second Circuit in Brill wrote "it is no longer the case that an ACOD under New York law fails to qualify as a favorable termination solely because it is not a determination of innocence."
Protesters especially should celebrate the Second Circuit's decision in Brill because it opens the courthouse doors to federal civil rights lawsuits alleging they were arrested in violation of their constitutional rights. Protest arrests—at least in New York—typically end in ACDs.
The civil rights victory in Brill wasn't the achievement of a fancy Ivy League-educated lawyer or a well-funded civil rights organization.
It was the hard-won success of a 40-something year-old woman representing herself after police and animal welfare activists in Ulster County targeted her shoe-string animal rescue efforts for scrutiny, according to court records. A call to the telephone number listed as Brill's Tuesday evening went unanswered and a message inviting comment was not returned.
The Second Circuit left open the door to continue applying Singleton to cases and barring lawsuits by arrestees who take ACDs if they were required to perform community service.
"But," the Court wrote, "we have no occasion today to address such scenarios."
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