Collateral-Order Review of “Favorable Termination” in Malicious-Prosecution Immunity Appeals
Commentary on Marcus Boone v. City of Elizabeth, 69 F.4th ___ (3d Cir. 2025)

I. Introduction

The Third Circuit’s not-for-publication opinion in Marcus Boone v. City of Elizabeth addresses a recurring procedural flash-point: how far the collateral-order doctrine stretches when police officers invoke qualified immunity on interlocutory appeal. While the panel largely dismissed the officers’ appeal for want of jurisdiction, it reached — and rejected — two legal arguments. Most notably, the majority held that courts may examine the “favorable termination” element of a § 1983 malicious-prosecution claim during an immunity appeal, and that Thompson v. Clark (2022) forecloses any requirement that the termination affirmatively establish innocence. Judge Freeman dissented on this jurisdictional point, creating an intra-panel debate that will influence future petitions for en banc or Supreme Court review.

The parties:

• Plaintiff–Appellee: Marcus Boone – arrested in 2012 for drugs and a firearm allegedly planted by police; his conviction was later vacated.
• Defendants–Appellants: Lieutenant Robert Keily and Detective Jose Torres – Elizabeth, NJ police officers who sought summary judgment on Boone’s federal and state malicious-prosecution claims.

II. Summary of the Judgment

• The district court denied summary judgment on Boone’s federal (§ 1983) and state (NJCRA) malicious-prosecution counts, finding genuine disputes over whether officers planted the gun and, consequently, whether probable cause existed.
• On appeal, the Third Circuit:

• Dismissed most challenges for lack of collateral-order jurisdiction (disputed facts & non-immunity defenses).
• Reached two purely legal immunity issues: (1) lack-of-probable-cause under Hector v. Watt; (2) “favorable termination.”
• Affirmed the district court as to both, holding:
  • (a) If a jury credits Boone’s “gun-planting” version, probable cause evaporates, so Hector does not immunize the officers; and
  • (b) After Thompson v. Clark, dismissal of charges (here, following suppression) satisfies favorable termination; actual innocence is unnecessary.

The net result: the case returns to the district court for trial on Boone’s malicious-prosecution theories.

III. Analysis

A. Precedents Cited & Their Influence

• Mitchell v. Forsyth, 472 U.S. 511 (1985) – Foundation for collateral-order review of qualified-immunity denials.
• Johnson v. Jones, 515 U.S. 304 (1995) – Bars interlocutory review of fact-based immunity disputes; relied upon to dismiss most of the officers’ appeal.
• Hector v. Watt, 235 F.3d 154 (3d Cir. 2000) – Officers argued Hector precludes damages based on ensuing prosecution; court distinguished it because Hector dealt with remedy, not evidence fabrication.
• Thompson v. Clark, 596 U.S. 36 (2022) – Supreme Court held favorable termination requires only that the prosecution end without conviction; decisive in rejecting the officers’ argument.
• Manuel v. City of Joliet, 580 U.S. 357 (2017) – Recognized § 1983 liability when detention/prosecution rests on fabricated evidence.
• Dennis v. City of Philadelphia, 19 F.4th 279 (3d Cir. 2021) – Distinguished; majority said Dennis concerned Heck-bar issues, not malicious-prosecution favorable-termination.
• Ziccardi, Plumhoff, Wesby, Lozano – Cited for collateral-order and qualified-immunity mechanics.

B. Legal Reasoning

1. Jurisdiction—Collateral Order Doctrine
   • Only purely legal qualified-immunity questions are appealable.
   • Disputes over whether the gun was planted are factual → non-appealable.
   • Non-immunity defenses (collateral estoppel, judicial estoppel, superseding cause) are outside the doctrine.
2. Probable Cause & Hector
   • If officers fabricated evidence, they lacked probable cause from inception; a “good-faith” seizure of contraband that doesn’t exist is legally impossible.
   • Hector bars some damages flowing from prosecutions based on illegally-seized but authentic evidence, not from fabricated evidence.
3. Favorable Termination
   • Post-Thompson, the Fourth Amendment malicious-prosecution claim needs termination “without conviction,” not affirmative innocence.
   • Dismissal after suppression of critical evidence meets that standard.
   • Majority asserts courts may evaluate this element on immunity appeal because it is “pure law” and integral to whether any constitutional right was violated.
   • Dissent reads Dennis to bar such review, viewing favorable termination as analytically distinct from qualified immunity; majority distinguishes.

C. Impact of the Decision

• Expanded Interlocutory Review Scope (Circuit Split Gestating): The panel stakes out that courts may review the favorable-termination element on immunity appeal, contrary to some readings of Dennis and perhaps other circuits. Expect litigants to cite or challenge this holding when seeking review of malicious-prosecution claims.
• Re-affirmation of Thompson within the Third Circuit: No “actual innocence” hurdle remains; dismissal on suppression grounds suffices.
• Guidance for Police-Misconduct Litigation: Officers cannot short-circuit trials merely by arguing alternate causes (guilty pleas) or collateral estoppel when evidence-fabrication is alleged and factual disputes persist.
• Practical Trial Consequences: District courts should proceed to jury trial where conflicting evidence exists on planting or fabrication; summary judgment appeals will rarely succeed.
• Potential Supreme Court Attention: Judge Freeman’s dissent flags a live question: is favorable termination reviewable on interlocutory appeal? This tension may invite higher-court clarification.

IV. Complex Concepts Simplified

• Qualified Immunity – Shields officials from suit unless (1) they violated a constitutional right, and (2) that right was “clearly established.” An immunity decision is normally appealed only after final judgment, but special rules allow immediate appeal of pure legal questions.
• Collateral-Order Doctrine – A narrow exception letting appellate courts review certain interlocutory orders (like immunity denials) if postponing review would defeat the very right at stake.
• Malicious Prosecution (Fourth Amendment variant)
  Elements in the Third Circuit: (1) initiation of criminal proceedings; (2) without probable cause; (3) initiated with malice; (4) proceedings ended in plaintiff’s favor; (5) plaintiff was seized pursuant to the charges.
• Favorable Termination – After Thompson, simply means the criminal case ended without a conviction, e.g., dismissal, acquittal, or vacatur; it need not prove actual innocence.
• Planting/Fabrication vs. Illegal Search – Planting evidence extinguishes probable cause entirely; an illegal search may still uncover real contraband, creating distinct remedial issues.

V. Conclusion

Boone is ostensibly unpublished, yet it sets a potentially significant marker in federal appellate procedure: the Third Circuit majority holds that courts may reach the favorable-termination element of a malicious- prosecution claim in a qualified-immunity appeal, and that Thompson v. Clark makes dismissal without conviction sufficient. While affirming the lower court’s refusal to grant immunity, the opinion narrows the officers’ available interlocutory arguments and clarifies that factual disputes about evidence fabrication must be tried, not appealed. The dissent underscores a jurisdictional fault-line that could ripen into a circuit split. For practitioners, the case is a cautionary tale: defendants should assume that immunity appeals will be tightly cabined to pure legal questions, and plaintiffs can rely on Thompson to satisfy favorable termination without proving innocence. Ultimately, Boone further aligns the circuit with modern Supreme Court precedent on both immunity and malicious prosecution, while opening a new debate on the collateral-order doctrine’s outer boundaries.