DISSENTING:
I respectfully, but forcefully dissent.
One would have to live on the dark side of the moon today to not know the following, unfortunate truth. Law enforcement officers are under siege. Today, with our majority opinion, we break down a lawful barrier that protects these brave men and women from frivolous and unwarranted lawsuits. From henceforth, our detectives and police officers must look over their right shoulder for physical danger, and over their left shoulder for time consuming and emotionally draining lawsuits. With this extra distraction impeding their steps, our state becomes less safe.
To begin with, the majority needlessly tinkers with the elements of malicious prosecution enumerated in the seminal case of Raine v. Drasin, 621 S.W.2d 895, 899 (Ky.1981). We could easily refine Raine by ways I will not belabor here. The majority’s adoption of the Restatement’s definition of the elements of malicious prosecution resurrects the element of “procurement” from the annals of our nineteenth century jurisprudence. I’m afraid it will prove problematic.
However, even if we apply the new criteria adopted by the majority for malicious prosecution, there are no genuine issues of material fact at issue here.
The officers never filed a criminal complaint or issued a citation against O’Daniel. They did not arrest him, nor did they procure an arrest warrant. The charge here was instituted by an indictment re*13turned by the grand jury upon submission of the matter by the special prosecutor.
O’Daniel contends that the officers engaged in “prosecutor shopping, willful insubordination toward orders- from the Justice Cabinet, and intentional withholding of exculpatory evidence from O’Daniel in the criminal case.” Because I urge this Court to determine whether the officers “urgently solicited or insisted” that the prosecutor proceed with procuring an indictment, I am primarily concerned with what O’Daniel labels “prosecutor shopping.” More precisely, I am concerned with the officers’ contact with the Franklin County Commonwealth Attorney and the special prosecutor prior to O’Daniel’s indictment. To further clarify, O’Daniel’s allegations of insubordination and withholding of evidence are relevant here only to the extent that they relate to the officers’ solicitation or insistence that the case proceed to the grand jury.
Our courts need to protect the public from abusive and unlawful police practices. We do not need to place a chilling and restrictive hand upon the shoulders of law enforcement officers who are passionate and energetic in their duties.
It is also important to note that the investigation of O’Daniel began only after a Department of Transportation employee notified the Kentucky State Police that she believed O’Daniels vehicle registration application was fraudulent. When their investigation was complete, the officers visited Franklin County Commonwealth Attorney Larry Cleveland. Mr. Cleveland advised them that O’Daniel and the general counsel for the Justice Cabinet had been to see him earlier in the day. This created a conflict for him to stay on the case. O’Daniel left a notebook with Mr. Cleveland which O’Daniel believed supported his actions. Mr. Cleveland gave that notebook to the officers.
Sometime thereafter, Mr. Cleveland wrote the Attorney General, to “request the appointment of a special prosecutor with respect to an investigation by the Kentucky State Police involving Steve O’Daniel —” The Attorney General accepted Mr. Cleveland’s request and appointed Jefferson County Commonwealth Attorney, David Stengel, to the position. Mr. Stengel’s deposition testimony in the present case is dispositive.
Mr. Stengel testified that it was his sole decision to present the Commonwealth’s case against O’Daniel to the grand jury. Critically, Mr. Stengel .also testified as follows:
Counsel: Was there ever an occasion to where any of the state ’ police officers insisted that this grand jury presentation go forward? (Emphasis added). '
Mr. Stengel: No, sir, they just wanted what they—I think what they expressed to us is they wanted an independent eye to look at it because they did not like the reason they got from Mr. Cleveland. (Emphasis added).
In going to the prosecutors, the. Appellants only wanted “an independent eye” to look at the case. Yet, they remain twisting in the wind years later under the oppressive lawsuit of malicious prosecution.
In response to additional questioning by Major Sapp’s attorney, Mr. Stengel indicated that given the facts and the case with which he was presented, he believed there was sufficient probable cause to go forward to the grand jury. It is noteworthy that Mr., Stengel had reviewed O’Daniel’s notebook, which O’Daniel believed supported his own actions, and found no evidence dissuading his decision to move forward with the case. The record also indicates that, upon the advice of his co-counsel, Tom Van DeRostyne, Mr. Stengel decided to charge O’Daniel with second-*14degree forgery. There is no evidence indicating that the officers participated in selecting that or any other charge.
Based on this evidence, it is clear that the officers did not urgently solicit or insist that either Mr. Cleveland or Mr. Stengel proceed with procuring an indictment. At most, the officers believed the case was worth “an independent eye to look at .... ” Therefore, I cannot conclude that the criminal proceedings were instituted by the officers, or at the instance of the officers. Raine, 621 S.W.2d at 899.
Even when applying the majority’s “procurement” standard, the officers are entitled to summary judgment in their favor based on the aforementioned evidence. For example, the majority presents an exhaustive account of the legal evolution of malicious prosecution yet provides only a fleeting reference to the relevant facts of the present case. More precisely, the majority holds that procuring a criminal proceeding “would encompass a wider range of conduct than allowed by the trial court.” The majority then concludes that such conduct “would include O’Daniel’s claim that the officers induced the prosecutors to commence the proceedings by providing him with inaccurate, false, and misleading information.”
Contrary to the majority’s unsupported assumption, there is nothing in the record indicating that the officers urgently solicited, insisted, or procured this prosecution. Unless, of course, speaking with prosecutors concerning an open investigation is sufficient evidence of procurement. Every prosecution necessitates a dialog between law enforcement officers and the prosecutor. Thus, it is unwise and unjust to hold that evidence of any and every such congress, no matter how benign, is sufficient to overcome the defendant’s motion for summary judgment. Yet that will be the result of the majority’s decision here.
In addition to there being no evidence indicating procurement, O’Daniel has failed to prove malice and the absence of probable cause. Not only did the grand jury find probable cause to indict, but the trial judge found sufficient evidence for the case to go to the jury. Even when applying the new malicious prosecution standard cited by the majority, there is no evidence that the officers acted without probable cause or acted with malice. The latter requires “seeking to achieve a purpose other than to bring an offender to justice.” There is no evidence whatsoever indicating malice.
Furthermore, I find nothing in the record indicating that the officers intentionally withheld any evidence. As previously discussed, Mr. Stengel testified that given the facts and the case with which he was 'presented, he believed there was sufficient probable cause to go forward to the grand jury. Therefore, it is irrelevant for the purposes of the present case whether, pri- or to proceeding with the indictment, Mr. Stengel was informed of all the evidence later introduced at trial. And while there is some evidence indicating that high ranking Justice Cabinet officials ordered KSP to release O’Daniel’s car from impound and to turn over the case to local authorities, it is unclear whether the officers involved here received such orders, specifically Major Sapp’s subordinates, Sergeants Martin and Motley.
The majority correctly takes note that “[hjistorically the tort of malicious prosecution has been disfavored.” This nearly ten-year-old case is a “poster child” as to why. Therefore, I respectfully suggest that the majority’s conclusion is misguided and does a great injury to our law enforcement officers.
In short, if summary judgement was not warranted in this case, it strains my imagi*15nation to conjure a situation where it would be. With this decision our Court virtually eliminates the possibility of summary judgment on behalf of officers in malicious prosecution cases. The police officer, already burdened with heavy life and death responsibilities, will always be exposed to a jury when acquitted defendants file malicious prosecution lawsuits. The criminal defendant and the conscientious police officer will merely trade seats in the court room.
Therefore, I vigorously dissent.
Keller, J., joins.