Malicious prosecution in California: suing over false charges and fabricated evidence

Being charged with a crime you did not commit is one of the most damaging things the government can do to a person. You may have spent time in jail, lost a job, paid for a defense lawyer and lived for months or years under suspicion. A malicious prosecution lawyer in California looks at whether officers or investigators started or pushed the case without probable cause and for an improper reason, and whether anyone lied or fabricated evidence along the way.

This guide explains the elements of a malicious prosecution claim, the "favorable termination" rule and how the U.S. Supreme Court changed it in 2022, the California immunity that protects public employees and how the state's highest court has limited it, claims for fabricated evidence, and what happens after a wrongful conviction. It is general information, not advice about your case.

What is malicious prosecution?

Malicious prosecution is a claim for being put through a legal proceeding that should never have been brought. In police cases, it usually means officers or detectives caused criminal charges to be filed or continued even though there was no probable cause, often by writing false reports, hiding evidence that cleared the person or pressuring witnesses.

Under California law, the claim generally requires three things:

1. The defendant started the case, or directed or took an active part in starting or continuing it, and it ended in your favor.
2. There was no probable cause for the charges.
3. The defendant acted with malice, meaning for a purpose other than bringing a guilty person to justice.

A federal version of the claim also exists. Under 42 U.S.C. § 1983, a person can sue for a Fourth Amendment violation when officers caused them to be seized, for example held in jail or required to appear, through charges brought without probable cause.

Prosecutors are a special case. They generally have absolute immunity for decisions like filing charges and presenting the case in court. Most malicious prosecution claims we see focus instead on the officers and investigators who supplied false or misleading information.

Does the case have to end in your favor?

Yes, but what that means depends on whether the claim is federal or state.

Federal claims: Thompson v. Clark (2022)

Before 2022, some federal courts required people to show that their criminal case ended in a way that pointed to their innocence. In Thompson v. Clark, decided April 4, 2022, the U.S. Supreme Court rejected that requirement for Fourth Amendment malicious prosecution claims under § 1983. The plaintiff "need only show that his prosecution ended without a conviction." A dismissal without any explanation can be enough for the federal claim.

Two years later, in Chiaverini v. City of Napoleon (2024), the Court added that probable cause for one charge does not necessarily mean there was probable cause for all the others. A claim may be possible even if one valid charge was filed alongside a baseless one.

State-law claims

California's own malicious prosecution rule is generally stricter. Courts usually require that the ending reflect on the merits, for example an acquittal or a dismissal because the evidence did not support the charge, rather than a dismissal on a technicality or as part of a deal. This difference is one reason most police malicious prosecution cases rely heavily on federal claims and the Bane Act.

Can you sue a California officer for malicious prosecution under state law?

The § 821.6 immunity

California has a statute that protects public employees from state-law malicious prosecution claims. Government Code § 821.6 says a public employee "is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." When the employee is immune, the agency generally is too.

How the California Supreme Court narrowed it

For decades, many Courts of Appeal read § 821.6 broadly, to protect officers for almost anything done during an investigation. In Leon v. County of Riverside, decided June 22, 2023, the California Supreme Court rejected that reading. It held that "Section 821.6 protects public employees from liability only for initiation or prosecution of an official proceeding," and disapproved a long list of earlier appellate decisions to the extent they said otherwise. In plain words, the immunity is about malicious prosecution itself. It does not cover other harmful conduct during an investigation.

The Bane Act route

Separately, the 2021 police reform law SB 2 amended California's civil rights statute, the Bane Act (Civil Code § 52.1). Subdivision (n) now says § 821.6 does not apply to Bane Act claims against peace officers or custodial officers, or the public entities that employ them (Civil Code § 52.1(n)). So even where a plain state-law malicious prosecution claim against an officer is blocked, a Bane Act claim based on the same false charges may not be. The Bane Act also allows attorney's fees.

Fabricated evidence claims

Sometimes the problem is not just weak charges but invented ones: a false police report, a made-up confession, a coerced witness statement, a planted item or a lab result misreported. Federal courts recognize a due process claim under § 1983 when officials deliberately fabricate evidence that is used to bring charges against a person. This claim is separate from malicious prosecution and can apply even if there was other evidence in the case.

The timing is different too. In McDonough v. Smith (2019), the Supreme Court held that the time limit for a fabricated-evidence claim generally begins when the criminal proceedings end in the person's favor, for example by acquittal.

Officers usually raise qualified immunity on federal claims. But deliberately fabricating evidence has long been treated as clearly unconstitutional, so that defense often has less force here than in fast-moving force cases.

What about wrongful convictions?

If you were convicted and later cleared, the rules shift. A federal claim that would show the conviction was wrong generally cannot go forward while the conviction stands; it must first be reversed, vacated or otherwise set aside. Once it is, claims for malicious prosecution, fabricated evidence and hidden evidence may become available, and the time limits for some of them start then.

California also has a separate process for compensation from the State. Under Penal Code § 4900 and the sections that follow, a person who was wrongly convicted of a felony and imprisoned may present a claim to the California Victim Compensation Board, either after a pardon on innocence grounds or after a court granted habeas or certain other relief and the charges were dismissed or the person was acquitted. That process has its own rules and deadlines and is separate from a civil rights lawsuit.

Deadlines for malicious prosecution and false charges

• State-law claims (including the Bane Act) against a city, county or the State: a written government claim generally must be presented within six months after the claim arises (Government Code § 911.2). For malicious prosecution, the claim generally arises when the criminal case ends in your favor. See our guide to the six-month government claim deadline.
• Federal § 1983 claims: generally two years in California, with no claim requirement. For malicious prosecution and fabricated evidence, the clock generally starts when the criminal case ends in your favor.
• While charges are pending: California generally bars suing an officer or agency over conduct related to charges still pending in superior court, and pauses the time to sue, but does not extend the six-month claim deadline (Government Code § 945.3).

If the arrest itself was unlawful, that claim usually runs on a different, earlier clock. Read our guide to false arrest claims in California.

Records that help prove false charges

1. All police reports and supplements, and the complete discovery your defense lawyer received.
2. Body camera and interview-room video, and recordings of any witness interviews.
3. The court docket, transcripts and the order dismissing the case or the verdict.
4. Your defense lawyer's file, including any evidence that was turned over late.
5. Public records of officer dishonesty. Records of sustained findings that an officer was dishonest in reporting, investigating or prosecuting a crime are public under Penal Code § 832.7.

How LaCour handles these cases

LaCour Trial Lawyers is a trial firm led by founding partner Jonathan P. LaCour. We take police misconduct and wrongful death in custody cases statewide, including cases where false reports followed excessive force or a police shooting. We have Spanish-speaking lawyers and staff and work on contingency: no fee unless there is a recovery. Ask for a free, confidential review.

Frequently asked questions

This guide is general information about California and federal law and about public records as of its date. It is not legal advice, and reading it or contacting us does not create an attorney–client relationship. Allegations in lawsuits are claims, not findings. Prior results do not guarantee a similar outcome. Attorney advertising.