stating that plaintiff could overcome presumption of independent judgment by prosecutor by showing pressure by police and citing favorably Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir.1989) (plaintiff seeking damages incident to her criminal prosecution would have to show that police unduly pressured or deceived prosecutors), Dellums v. Powell, 566 F.2d 167, 192-93 (D.C.Cir.1977) (where allegation of misconduct is directed at police, a malicious prosecution claim cannot stand if the decision made by the prosecutor to bring criminal charges was independent of any pressure exerted by police)
How later courts described this case
- stating that plaintiff could overcome presumption of independent judgment by prosecutor by showing pressure by police and citing favorably Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir.1989) (plaintiff seeking damages incident to her criminal prosecution would have to show that police unduly pressured or deceived prosecutors), Dellums v. Powell, 566 F.2d 167, 192-93 (D.C.Cir.1977) (where allegation of misconduct is directed at police, a malicious prosecution claim cannot stand if the decision made by the prosecutor to bring criminal charges was independent of any pressure exerted by police)
- explaining that “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” where the required causal connection “is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another”
- holding that, in a Bivens action “for inducing prosecution in retaliation for speech,” a “complaint [cannot] state[ ] an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge,” and “that want of probable cause must be ... proven”
- holding that a showing of retaliatory motive on the part of the official urging prosecution, combined with an absence of probable cause, is “enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor’s decision to bring the charge”
Written by the judges who cited it.
Later courts went against this
Questioned by David Marshall v. City of Farmington Hills, 693 F. App'x 417 (2017)
The Sixth Circuit later recognized that Hartman called into question its line of cases “holding that ‘probable cause is not determinative of the [First Amendment] constitutional question.
Questioned by Thomas Leonard v. Stephen Robinson, in His Individual Capacity, 477 F.3d 347 (2007)
Hartman, therefore, calls into question our cases holding that “probable cause is not determinative of the [First Amendment] constitutional question.
Distinguished
Distinguished by La Playita Cicero, Inc. v. Town of Cicero, 175 F. Supp. 3d 953 (2016)
But Hartman is inapplicable for the same reasons it was inapplicable with regard to Dembowski.
The opinion
Justice Ginsburg,
with whom
Justice Breyer joins, dissenting.
The Court of Appeals, reviewing the record so far made, determined that “[t]he evidence of retaliatory motive [came] close to the proverbial smoking gun.” 388 F. 3d 871, 884 (CADC 2004). The record also indicated that the postal inspectors engaged in “unusual prodding,” strenuously urging a reluctant U. S. Attorney’s Office to press charges against Moore. Ibid. Following Circuit precedent, the Court of Appeals held that “once a plaintiff shows [conduct sheltered by the First Amendment] to have been a motivating factor in the decision to press charges,” the burden shifts to the defending officials to show that the case would have been pursued anyway. Id., at 878 .
Recognizing that this case is now directed against the instigating postal inspectors alone, not the prosecutor, I would not assign to the plaintiff the burden of pleading and proving the absence of probable cause for the prosecution. Instead, in agreement with the Court of Appeals, I would assign to the postal inspectors who urged the prosecution the burden of showing that, had there been no retaliatory motive and importuning, the U. S. Attorney’s Office nonetheless would have pursued the case.
Under the Court’s proof burden allocation, which saddles plaintiff — the alleged victim — with the burden to plead and prove lack of probable cause, only entirely “baseless prosecu *267 tions” would be checked. Id., at 879 . So long as the retaliators present evidence barely sufficient to establish probable cause and persuade a prosecutor to act on their thin information, they could accomplish their mission cost free. Their victim, on the other hand, would incur not only the costs entailed in mounting a defense, he likely would sustain a reputational loss as well, and neither loss would be compensable under federal law. Under the D. C. Circuit’s more speech-protective formulation, “[a] Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),] recovery remains possible ... in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the [investigation and ensuing] prosecution would not have occurred but for the [defending] officials’ retaliatory animus.” Id., at 881. That such situations “are likely to be rare,” it seems to me, does not warrant “structuring a cause of action,” ante, at 264, that precludes relief when they do arise.
For reasons fully developed in the D. C. Circuit’s opinion, I conclude that, in full accord with this Court’s decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977), the Court of Appeals’ decision strikes the proper balance. I would, therefore, affirm the Circuit’s judgment.