For the second time in four years, the federal appeals court based in Colorado has reinstated a claim of malicious prosecution against a former employee of the Denver District Attorney’s Office whose allegedly false testimony caused the plaintiffs to be wrongfully arrested.

Victoria Carbajal and Luis Leal first filed suit more than a decade ago, alleging they were under subpoena to testify in a state criminal trial in July 2011. The judge rescheduled the trial but did not modify the subpoena. Allegedly, after Carbajal and Leal did not appear on the original trial date, prosecutor Rebekah Watada testified before a different judge about the pair’s absence. The judge issued an arrest warrant for both plaintiffs for contempt of court.

Carbajal and Leal — who described themselves as “two innocent and elderly citizens, who are also disabled” — were jailed and given $10,000 bonds. Shortly afterward, the district attorney’s office dropped the contempt charges.

The plaintiffs sued Watada, who is now a municipal judge in Westminster, alleging malicious prosecution. A federal judge initially dismissed the claim after finding Watada enjoyed absolute immunity as a prosecutor. However, the U.S. Court of Appeals for the 10th Circuit decided in 2020 that Watada’s alleged role as a witness in the contempt case, rather than an advocate, eliminated the protection of prosecutorial immunity.

Upon returning to the trial court, U.S. District Court Chief Judge Philip A. Brimmer concluded Watada was instead entitled to qualified immunity, which shields government employees from civil liability unless they violate a person’s clearly established legal rights. To prove malicious prosecution, Brimmer elaborated, the plaintiffs needed to show, among other things, the legal proceedings at issue terminated in favor of the plaintiffs.

“While the Court agrees that the contempt charges were not pursued by the prosecution, the issue is whether the prosecution’s decision not to do so constitutes a termination in plaintiffs’ favor. The Court finds that it does not,” he wrote in September 2021.

Because the dismissal of the charges “are not indicative of plaintiffs’ innocence,” Brimmer concluded there was no viable claim for malicious prosecution.

While the case was again on appeal to the 10th Circuit, the U.S. Supreme Court handed down a key decision in spring 2022. By 6-3, the majority ruled that a malicious prosecution claim need only show the prosecution ended without a conviction, not that the plaintiff was innocent.

“The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed,” wrote Justice Brett M. Kavanaugh. “And the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed.”

Watada countered that regardless of the Supreme Court’s decision, there “wasn’t even any prosecution” in the first place.

The 10th Circuit was unmoved.

Given the Supreme Court’s ruling, “an affirmative indication of actual innocence is not required to establish favorable termination,” wrote Judge Allison H. Eid in the Aug. 21 order of a three-judge appellate panel. Consequently, the court reversed Brimmer’s dismissal of the claim and directed him to analyze whether Watada was still entitled to qualified immunity on other grounds.

The case is Carbajal et al. v. Watada.