This page uses extracted PDF text. Text can misread numbers, dates or table columns. Check the PDF before quoting or interpreting it. Redacted areas remain redacted.
- 10 -
The Supreme Court rejected the O’Connors’ argument that they could not be liable for
malicious prosecution because they were relying on the advice of counsel.9 But the O’Connors
did not present an intervening and superseding plea in bar as the appellees’ do here. We find that
O’Connor does not stand for the proposition that the Supreme Court has rejected these appellees’
affirmative defense, but rather reaffirmed the requirements of an advice of counsel defense in a
malicious prosecution action.
B. Superseding and intervening findings of probable cause constitute a valid defense to a
malicious prosecution action.
In addition to her interpretation of O’Connor, Cline emphasizes that “[t]he test of
probable cause is to be applied as of the time when the action complained of was taken.” Lee,
219 Va. at 26 (citation omitted). Typically, “the time when the action complained of was taken”
refers to when a law enforcement officer swears out a warrant. Id. at 26-27 (citing Bill Edwards
Oldsmobile, Inc. v. Carey, 219 Va. 90, 97 (1978) (“The crucial issue is whether [the plaintiff]’s
evidence failed as a matter of law to establish lack of probable cause on the part of [the
defendant] in . . . giving information which resulted in the issuance of the arrest warrant.”)). But
because there are no Virginia cases on point regarding intervening and superseding findings of
9 In attempting to rely on these determinations as evidence of
probable cause as a matter of law, the O’Connors seem to suggest
an “advice of counsel defense.” That defense is not applicable in
this case since the O’Connors only spoke to [the sheriff’s deputy],
and [the advising Commonwealth’s attorney] was not acting as the
O’Connor’s attorney when he made his determination of probable
cause. Even if the defense were available, it would not have been
established in this case as a matter of law.
O’Connor, 281 Va. at 10. Jump to an indexed page (13 of 13)