Background
In August 2024, plaintiff Billewicz visited the Fair Haven town office with his mother regarding pending public-information requests. The town manager refused to provide the requested information until the plaintiff paid preparation costs. Shortly thereafter, the town manager heard someone screaming obscenities from a nearby park and went outside to investigate. He encountered Billewicz, who was yelling and cursing at him, telling him to “fuck off” and calling him a “little bitch and a dick.” The town manager reported the incident to the police chief. A town employee also reported to police that Billewicz was yelling and heading toward town hall.
The police chief consulted with the State’s attorney and determined that Billewicz could be charged with disorderly conduct. Two weeks later, an officer served Billewicz with a citation—without arrest or custody—for disorderly conduct under Vermont Statute 13 V.S.A. § 1026(a)(3) for using abusive or obscene language in a public place. The criminal division found probable cause for this charge. When Billewicz moved to dismiss, arguing his speech was not obscene, the State amended the information to charge disorderly conduct under § 1026(a)(1) for “violent, tumultuous or threatening behavior.” The criminal court found no probable cause for the amended charge due to insufficient physical conduct and dismissed the proceeding.
Billewicz then filed a civil lawsuit against the town, town manager, police chief, and police officer, asserting false arrest, constitutional free-speech violations, malicious prosecution, and negligent supervision claims. He withdrew the false-arrest and constitutional claims and opposed summary judgment only on malicious prosecution and negligence. The trial court granted summary judgment to defendants, finding that the criminal division’s probable-cause determination for the original charge defeated the malicious-prosecution claim.
The Vermont Supreme Court affirmed summary judgment, holding that Billewicz failed to establish a malicious prosecution claim. To recover for malicious prosecution, a claimant must show: (1) the proceeding was instituted without probable cause, (2) it was instituted with malice, and (3) it terminated in the claimant’s favor. The court emphasized that malicious-prosecution claims are disfavored and courts are reluctant to use them to chill legitimate law enforcement.
The court held that because the criminal division found probable cause for the original disorderly-conduct charge (abusive/obscene language), a presumption of probable cause exists in the civil context. This presumption is rebuttable only if the plaintiff demonstrates that the criminal court’s finding was based on misleading, fabricated, or otherwise improper evidence. Billewicz merely disputed certain factual assertions by the town manager but presented no evidence that police fabricated the description or acted improperly in bringing the original charge. Thus, he failed to rebut the presumption. The court rejected Billewicz’s argument that filing a motion to dismiss was sufficient to rebut the presumption, finding no legal authority for that proposition and noting that Billewicz did not argue on appeal that the facts alleged in the charging affidavit were insufficient to support probable cause for disorderly conduct through abusive language.
The court further held that the State’s independent decision to amend the information to a charge lacking probable cause could not be attributed to the defendants absent evidence of their direct involvement. Because the police officers’ initial citation was supported by probable cause, that decision could not support a malicious-prosecution claim. The defendants were not the “proximate and efficient cause” of the amended charge, which was apparently filed independently by the State. Thus, the amended charge did not support Billewicz’s claim against these defendants.