Publication Name

Policing Symmetry


Every day, criminal court judges across the United States decide whether the police had probable cause to arrest a suspect. When a court finds the police lacked probable cause, the arrestee may bring a 42 U.S.C. § 1983 civil claim against the arresting officer or municipality for a wrongful arrest. Yet, under current issue preclusion rules, whether the civil court will relitigate probable cause depends, in part, on who prevailed at the criminal court hearing. If the government prevails, the suspect will be precluded from relitigating the question of probable cause because they were a party to the original suit. However, if the criminal court finds police lacked probable cause, the government may relitigate probable cause in the civil case because, under state preclusion rules, the municipality and police officials were not the “same party” that prosecuted the criminal case. This is problematic. If relitigated, not only may the criminal and civil dispositions result in different conclusions about the exact same issue, but these inconsistencies suggest a much bigger problem: a flawed, arbitrary justice system that favors the government. There should be a rebuttable presumption that the prosecutor, municipality, and police are the same party for the purpose of issue preclusion in probable cause cases. Legal scholarship discussing the procedural relationships between criminal and civil cases wholly fails to consider how governmental identities might factor into issue preclusion determinations. This Article fills that gap. Party identity is at the core of both issue preclusion and § 1983. This Article is the first to consider how these two theories of identity should inform one another as parties shift from criminal to civil litigation.