Hartman v. Moore

In Hartman v. Moore, the U.S. Supreme Court heightened the standard for a civil suit for retaliatory prosecution. In a decision by Justice David Souter without any participation by John Roberts and Sam Alito (they had just been confirmed by the U.S. Senate to take their seats on the Court), Souter wrote:

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This is a Bivens action against criminal investigators for inducing prosecution in retaliation for speech. The question is whether the complaint states an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge. We hold that want of probable cause must be alleged and proven.

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Hartman v. Moore, 547 U.S. 250, 252, 126 S. Ct. 1695, 1699 (2006). A passage helpful to plaintiffs is this:

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Some official actions adverse to such a speaker might well be unexceptionable if taken on other grounds, but when nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution. See Crawford-El, supra, at 593, 118 S. Ct. 1584, 140 L. Ed. 2d 759; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 283-284, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977) (adverse action against government employee cannot be taken if it is in response to the employee's "exercise of constitutionally protected First Amendment freedoms"). When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens. See 403 U.S., at 397, 91 S. Ct. 1999, 29 L. Ed. 2d 619.

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Hartman v. Moore, 547 U.S. 250, 256, 126 S. Ct. 1695, 1701 (2006). The Court explained further:

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It is, instead, the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, that provides the strongest justification for the no-probable-cause requirement espoused by the inspectors. Although a Bivens (or § 1983) plaintiff must show a causal connection between a defendant's retaliatory animus and subsequent injury in any sort of retaliation action, see Crawford-El, 523 U.S., at 593, 118 S. Ct. 1584, 140 L. Ed. 2d 759; Mt. Healthy, 429 U.S., at 285-287, 97 S. Ct. 568, 50 L. Ed. 2d 471, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty that can be understood by comparing the requisite causation in ordinary retaliation claims, where the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action, with causation in a case like this one. Take the example of a public employee's claim that he was fired for speech criticizing the government.

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Hartman v. Moore, 547 U.S. 250, 259, 126 S. Ct. 1695, 1703 (2006)