The Requirements of the Charge of Retaliatory Prosecution: Making Policy

Hartman v. Moore

William Moore, with Recognition Equipment Inc. (REI) had already received $50 million to develop a multi-line optical character reader when the post office began its push to get people to start using their full zip codes (6 digit – 4 digit) which would permit the post office to retrieve routing information from a single line. Some congressmen had reservations about the single line technology which REI exploited, allegedly against direct requests by the Postmaster General, by hiring a P.R. firm, recommended by a Postal Service governor, and successfully lobbying Congress. The multi-line contract, however, went to a competing firm, and two investigations were initiated against REI. After 6 weeks a court determined that there was a “complete lack of direct evidence” and granted REI’s motion for summary judgment. REI alleges here that the prosecutor and inspectors had engineered the cases against it in retaliation for its criticism of the Postal Service in violation of the First Amendment. The question here is whether the plaintiffs must provide evidence a lack of probable cause.

The Court states that it is a matter of settled law the Constitution prohibits Government officials from retaliating against free speech and that “retaliation is subject to recovery as the but-for cause of official action offending the Constitution.” The inspectors argue that (1) without a no-probable-cause requirement frivolous “Bivens actions” (actions for retaliatory prosecutions) cannot be screened effectively, and (2) that the common law tort of “malicious prosecution” indicates that there should be such a requirement. Calling the common law a “source of inspired examples’ (rather than “prefabricated components”) the Court argues that there are no more Bivens actions in circuits that do not have a no-probable-cause requirement than in ones that do, and that there is no more reason to believe that Bivens actions are any more synonymous with “malicious prosecution” than “abuse of process,” which has no such requirement.

The Court offers two reasons for requiring a plaintiff to plead and prove no-probable-cause. First, such a requirement is consistent with the requirement that the prosecution be the but-for effect of unconstitutional motives, noting that its litigation is “highly likely” because of its evidentiary value. Second, noting that in cases such as this one the prosecutor is not the one who allegedly harbored the unconstitutional animus. Therefore, in order to reflect an investigator’s inducement of the prosecution, as well as to overcome the presumption that a prosecutor acts appropriately, the Court decides that “the [necessary] connection, to be alleged and shown, is the absence of probable cause”. In the end, the Court accepts that the lack of probable cause is neither necessary nor sufficient, but considers it such an essential part of the necessary accusations that it should be considered part of the charge. This one sounds a lot like policy making.

The dissent takes issue with saddling the alleged victim with the burden of proving no-probable cause, and suggests that the appeals court struck the right balance.