Officer Not Victim Of ‘Malicious Prosecution’

Jerry Ims served as a Portsmouth, Rhode Island police officer from July 6, 1987, until his retirement on February 26, 2004. On November 26, 2001, Ims participated in a training exercise centered on the issue of the appropriate use of force during an arrest. The exercise involved a role-playing exercise with Ims, Officers Scott Travers and Steve Alfonso acting as police officers, and Officer William Burns portraying the perpetrator. The exercise did not go well. After resisting the officers’ attempts to “arrest” him, Officer Burns began struggling with Ims. Travers fired several “simunition” rounds at Officer Burns’s back and leg in an effort to apprehend him. While struggling with Ims, Officer W. Burns exclaimed that he had been cut. The training exercise ended, and Burns, who was bleeding, was taken to the hospital and was treated for a one-centimeter laceration on his head.

The next day, Burns spoke with a lieutenant about filing assault charges against Ims, contending that during the exercise Ims intentionally struck him five times with the butt of his firearm. Based on this allegation, the Police Chief immediately ordered the lieutenant to commence an investigation into the training incident, and Ims was placed on administrative leave with pay and benefits. Later, the Chief directed the lieutenant to suspend the internal investigation while the state police conducted a separate inquiry into the incident.

The state police investigation eventually culminated in a grand jury proceeding. In January 2002, the grand jury declined to indict Ims for assault with a dangerous weapon or simple assault. When the Department’s disciplinary investigation resulted in a finding that Ims was without fault, Ims sued the Town for the tort of “malicious prosecution.”

The Rhode Island Supreme Court dismissed Ims’ claim. The Court reasoned that malicious prosecution was defined as “a suit for damages resulting from a prior criminal or civil legal proceeding that was instituted maliciously and without probable cause, and that terminated unsuccessfully for the plaintiff therein.” The Court noted that a claim for malicious prosecution was a “disfavored cause of action because it tended to deter the prosecution of crimes and/or to chill free access to the courts.”

Ims argued that the state police investigation and ensuing grand jury proceeding were criminal proceedings for purposes of establishing the tort of malicious prosecution. The Court found that “Ims is incorrect, and he has misconstrued the role of the common-law grand jury in Rhode Island. The purpose of the grand jury is to serve the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions. The grand jury has developed primarily as an inquisitorial institution, as opposed to one of an adversarial nature. The investigative role of the grand jury and the secrecy attached to the proceedings make clear that a grand jury investigation is not a criminal prosecution; it is an inquiry designed to determine whether or not a criminal prosecution is warranted based on the evidence presented.

“In the absence of an indictment, information, or arrest, there is no criminal prosecution. A party may not properly maintain an action for malicious prosecution if that party has not been arrested, served with process, or indicted by a grand jury in the underlying criminal action. It is undisputed that the grand jury declined to indict Ims and no prosecution was undertaken against him. We therefore conclude that the grand jury investigation was not a criminal proceeding, and that judgment should be granted judgment for the Town on Ims’ claim of malicious prosecution.”

Ims v. Town of Portsmouth, 2011 WL 6130609 (R.I. 2011).