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Hartman v. Moore (2006) –
Retaliatory Prosecution Claims Against Government Officials
1st Amendment

By David L. Hudson Jr.

Hartman v. Moore, 547 U.S. 250 (2006), is a decision by the Supreme Court of the United States involving the pleading standard for retaliatory prosecution claims against government officials. After a successful lobbying attempt by the CEO of a manufacturing company against competing devices that the US Postal Service supported, the CEO found himself the target of an investigation by US postal inspectors and a criminal prosecution that was dismissed for lack of evidence. The CEO then filed suit against the inspectors and other government officials for seeking to prosecute him in retaliation for exercising his First Amendment rights to criticize postal policy. The Court ruled 5-2 that to prove that the prosecution was caused by a retaliatory motive, the plaintiff bringing such a claim must allege and prove that the criminal charges were brought without probable cause.

In Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court ruled that plaintiffs alleging federal civil claims—in this case, violation of First Amendment expressive rights— for retaliatory prosecution must prove the absence of probable cause for the retaliation as an essential element of their claims.

Moore criticized postal service for not using his new technology

The case involved William G. Moore Jr., the chief executive officer of a company that offered multiple optical character readers that would enable the U.S. Postal Service to read and sort mail much quicker than with its standard single-line scanning machines. Moore had lobbied Congress, testified before committees, and engaged in other First Amendment–protected activity that criticized the postal service for not using the new technology.

Postal Service investigated Moore for criminal charges

The U.S. Postal Service eventually employed this new technology but entered into a contract with one of Moore’s competitors. Postal inspectors then investigated Moore to determine whether he had participated in a kickback scheme with a postal service governor. The postal inspectors urged that criminal charges be brought against Moore and his company, but after a six-week trial, a federal district court dismissed the charges, finding a “complete lack of direct evidence” linking Moore to criminal wrongdoing.

Moore claimed investigation was retaliation for exercising his First Amendment rights

Moore then filed a federal civil claim under Bivens v. Six Unknown Fed. Narcotics Agents (1971), alleging retaliation for the exercise of his First Amendment rights. He claimed that the prosecutor and postal inspectors had engineered the investigation because he had publicly criticized the U.S. Postal Service. A federal court granted the prosecutor immunity, but the claims against the postal inspectors continued. The inspectors contended that the claims against them must fail because Moore must prove a lack of probable cause. Moore countered that he need only show that a substantial factor in the decision to bring the unfounded criminal charges was retaliation for his protected activities.

Court said Moore had to show lack of probable cause for the investigation

By a 5-2 vote (Chief Justice John G. Roberts Jr. and Justice Samuel A.Alito Jr. did not participate), the Supreme Court ruled that a plaintiff alleging retaliatory prosecution under Bivens or under 42 U.S.C. section 1983 must show a lack of probable cause. Writing for the majority, Justice David Souter explained, “Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost,it makes sense to require such a showing as an element of a plaintiff’s case, and we hold that it must be pleaded and proven.”

Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, dissented, noting that the record in the case showed that the postal inspectors engaged in “unusual prodding” of the prosecutor to institute criminal charges against Moore. Ginsburg reasoned that requiring a lack of probable cause will deter “only entirely baseless prosecutions” and allow “retaliators” to pursue many claims that should not be brought. She agreed with the federal appeals court standard that allows retaliatory prosecution claims where the plaintiff shows “strong motive evidence combine(d) with weak probable cause” and that the claim would not have been brought but for the retaliatory animus.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​



Facts of the case

William Moore sued six postal inspectors in federal court, alleging that they had brought criminal charges against him in retaliation for lobbying efforts he undertook on behalf of his company. The inspectors claimed that they had qualified immunity (that is, because they filed the charges in their official capacity on good faith, they could not be sued) and also that the case should be dismissed because they had probable cause to charge Moore. The district court sided with Moore, and the Court of Appeals for the District of Columbia agreed, finding that, even with probable cause, they must show that that the prosecution was not motivated by a desire for retaliation.


Are law enforcement agents liable for retaliatory prosecution in violation of a defendant’s First Amendment free speech rights when the prosecution was supported by probable cause?


No. In a 5-2 decision, the Court ruled in favor of the postal inspectors, overruling the Court of Appeals. The opinion by Justice David Souter held that plaintiffs alleging retaliatory prosecution must prove that the law enforcement agents lacked probable cause. Probable cause, the Court ruled, is a crucial component of the “chain of causation” needed to evaluate retaliatory prosecution charges. Justice Ginsburg wrote a dissent, which Justice Breyer joined. Chief Justice Roberts and Justice Alito took no part in the decision. cited




certiorari to the united states court of appeals for the district of columbia circuit

No. 04–1495. Argued January 10, 2006—Decided April 26, 2006

Seeking to convince the United States Postal Service to incorporate multiline optical scanning technology, a company (REI), which manufactured multiline optical readers, commenced an extensive lobbying and public-relations campaign. In the end, the Postal Service begrudgingly embraced the multiline technology, but awarded the lucrative equipment contract to a competing firm. Subsequently, Postal Service inspectors investigated REI and its chief executive, respondent Moore, for their alleged involvement in a consulting-firm kickback scandal and for their alleged improper role in the search for a new Postmaster General. Urged at least in part by the inspectors to bring criminal charges, a federal prosecutor tried REI and its top officials. But, finding a complete lack of evidence connecting them to any wrongdoing, the District Court acquitted the defendants. Moore then filed an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, against the federal prosecutor and petitioner postal inspectors, arguing, as relevant here, that they had engineered the prosecution in retaliation for his lobbying efforts. The claims against the prosecutor were dismissed in accordance with the absolute immunity for prosecutorial judgment. Ultimately, the entire suit was dismissed, but the Court of Appeals reinstated the retaliatory-prosecution claim against the inspectors. Back in District Court, the inspectors moved for summary judgment, claiming that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity. The District Court denied the motion, and the Court of Appeals affirmed.

Held: A plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges. Pp. 5–15.

   (a) As a general matter, this Court has held that the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out. Crawford-El v. Britton, 523 U. S. 574, 592. When nonretaliatory grounds are insufficient to provoke the adverse consequences, retaliation is subject to recovery as the but-for cause of official injurious action offending the Constitution, see, e.g., id., at 593, and a vengeful federal officer is subject to damages under Bivens. Pp. 5–6.

   (b) Although a Bivens (or 42 U. S. C. §1983) plaintiff must show a causal connection between a defendant’s retaliatory animus and subsequent injury in any retaliation action, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty which can be overcome by a showing of the absence of probable cause. In an ordinary retaliation case, the evidence of motive and injury are sufficient for a circumstantial demonstration that the one caused the other, and the causation is understood to be but-for causation, without which the adverse action would not have been taken. When the claimed retaliation is, however, a criminal charge, the action will differ in two ways. First, evidence showing whether there was probable cause for the criminal charge will be highly valuable circumstantial evidence to prove or disprove retaliatory causation. Demonstrating a lack of probable cause will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that the prosecution would have occurred even without a retaliatory motive. Second, since the defendant in a retaliatory-prosecution case will not be the prosecutor, who has immunity, but an official who allegedly influenced the prosecutorial decision, the causal connection required is not between the retaliatory animus of one person and that person’s own injurious action, as it is in the ordinary retaliation case, but between the retaliatory animus of one person and the adverse action of another. Because evidence of an inspector’s animus does not necessarily show that the inspector induced the prosecutor to act when he would not have pressed charges otherwise and because of the longstanding presumption of regularity accorded prosecutorial decisionmaking, a showing of the absence of probable cause is needed to bridge the gap between the nonprosecuting government agent’s retaliatory motive and the prosecutor’s injurious action and to rebut the presumption. Pp. 6–13.

(c) The significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. Though not necessarily dispositive, the absence of probable cause along with a retaliatory motive on the part of the official urging prosecution are reasonable grounds to suspend the presumption of regularity behind the charging decision and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor’s decision to go forward. Pp. 13–15.

388 F. 3d 871, reversed and remanded.

   Souter, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined. Roberts, C. J., and Alito, J., took no part in the consideration or decision of the case. cited



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