While the two claims are similar, malicious prosecution and abuse of process claims have some essential differences. A plaintiff can sue for abuse of process when a defendant starts a legal process with the intention to obtain results for which the process was not designed. A plaintiff can sue for malicious prosecution when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she doesn’t have a case. In addition, the plaintiff must have already obtained a “favorable termination” of the defendant’s malicious case before he or she can sue for malicious prosecution.Anyone familiar with this legal concept understands why the DA spent so much time with a grand jury and why the DOJ will be unable to do anything to Wilson other than make a lot of noise for public consumption
Essential Elements of Malicious ProsecutionAs we can see what Crump and others have been asking the DA to do is to engage in malicious prosecution. Also by calling on the feds, they are trying to get that entity to engage in malicious prosecution.
A successful malicious prosecution claim requires all of the following:
beginning or continuing a criminal or civil legal proceeding
without reasonable grounds to believe the allegations of the proceeding with a purpose other than simply getting a judgment in the proceeding, and that
the proceeding has terminated in the favor of the person being prosecuted or sued (i.e. the future plaintiff in the malicious prosecution suit must first win the suit against him or her).
Even if the people bringing the criminal or civil proceeding think they have a winning case and are suing for a legitimate reason when they begin the case, they can be guilty of malicious prosecution if they discover a reason they cannot win during the case, but continue the case for improper motives anyway. [ My underlines]What Benjamin Crump and others have been calling for is for the DA to try a case "just because" rather than by following the law. Had the DA done so, the city could have been sued for abuse of process. And example of a city being sued for malicious prosecution