Hartman v. Moore

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What Happened

William Moore was the chief executive of Recognition Equipment Inc., a company that made optical scanners. In the 1980s the company lobbied the Postal Service, publicly and persistently, to adopt its multiline scanning technology instead of the single-line system the Postal Service preferred. Moore’s campaign included testimony before Congress and criticism of Postal Service officials.

Postal inspectors then investigated Moore and his company. On the inspectors’ recommendation, a federal prosecutor brought criminal charges alleging that Moore had participated in a kickback scheme involving a Postal Service contractor. At trial, the district court granted Moore’s motion for a judgment of acquittal, finding a “complete lack of direct evidence” connecting him to the scheme.

Moore sued the inspectors under Bivens, the federal-officer counterpart to § 1983. He alleged that they had induced the prosecution in retaliation for his First Amendment activity. The prosecutor himself had absolute immunity and was dismissed. The question was whether Moore had to show that the charges lacked probable cause in order to proceed against the inspectors.

What the Court Decided

The Supreme Court held that he did. Justice Souter wrote for the majority.

A retaliatory-prosecution claim has a causation problem that ordinary retaliation claims do not. The person who took the adverse action, the prosecutor, is immune and is not the defendant. The defendants are the investigators who allegedly induced the prosecutor to act. To connect the investigators’ motive to the prosecution, the plaintiff must show that their retaliatory animus caused the prosecutor’s decision, and prosecutors are presumed to exercise independent judgment.

The Court held that the absence of probable cause is the bridge across that gap. If the charges were supported by probable cause, the prosecutor’s decision is presumed to have been independent, and the chain of causation from the investigators’ motive to the prosecution is broken. If probable cause was absent, the inference that the prosecution was induced by retaliation becomes reasonable. Because the issue is so central, the Court made it an element the plaintiff must plead and prove, not an affirmative defense.

What It Means in Practice

Hartman governs retaliatory prosecution. Thirteen years later, Nieves v. Bartlett extended a similar no-probable-cause requirement to retaliatory arrest, with a narrow exception. Together they mean that in almost every First Amendment retaliation claim arising from an arrest or prosecution, probable cause is the first and usually the decisive fight.

The two cases are not identical. Hartman has no exception. If probable cause existed for the charge, the retaliatory-prosecution claim fails, full stop. Nieves allows a retaliatory-arrest claim to proceed despite probable cause when the plaintiff has objective evidence that similarly situated people who were not engaged in the same speech were not arrested.

How You Can Use It

• Plead the absence of probable cause as an element. If your theory is that an officer pushed a prosecutor to charge you because of your speech, your complaint must allege facts showing the charge lacked probable cause. Do it with the same element-by-element care you would use for a false-arrest count. See False Arrest Claim Elements and Defenses.
• Plead what the officer did to induce the prosecution. A false report, a misleading affidavit, or testimony to a grand jury is the officer’s contribution. Plead it with the statement, the contradiction, the correction, and its effect on the charging decision. See How to Plead a False Police Report or Warrant Affidavit.
• Distinguish arrest from prosecution. If your claim is about the arrest, Nieves governs and the exception may be available. If it is about the charging decision, Hartman governs and there is no exception. Plead them as separate counts when the facts support both.

How It Can Be Used Against You

• Any probable cause defeats the claim. As with false arrest, the defense will search for any offense the facts support. If it finds one, the retaliatory-prosecution claim is over.
• The prosecutor’s independent judgment. Even without Hartman, the defense will argue that the prosecutor, not the officer, decided to charge. Your complaint has to show what the officer supplied and how it drove that decision.
• Grand jury indictment. In the Fifth Circuit, an indictment generally establishes probable cause unless it was procured by false testimony or the withholding of material information. Plead the taint specifically if you have it.

How to counter: Build the offense-element analysis first. If the facts known to the officer did not support the charge, say which element failed and why. Then plead the officer’s role in the charging decision. Motive evidence comes last and alone will not carry the claim.