OPINION OF THE COURT
HARTMAN V. MOORE
547 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NO. 04-1495
MICHAEL HARTMAN, FRANK KORMANN, PIERCE McINTOSH,
NORMAN ROBBINS, and ROBERT EDWARDS, PETITIONERS
v. WILLIAM
G. MOORE, Jr.
on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[April 26, 2006]
Justice Souter delivered the
opinion of the Court.
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.
I
In the 1980’s, respondent William
G. Moore, Jr., was the chief executive of Recognition Equipment
Inc. (REI), which manufactured a multiline optical character reader
for interpreting multiple lines of text. Although REI had received
some $50 million from the United States Postal Service to
develop this technology for reading and sorting mail, the
Postmaster General and other top officials of the Postal Service
were urging mailers to use nine-digit zip codes (Zip + 4), which
would provide enough routing information on one line of text to
allow single-line scanning machines to sort mail automatically by
reading just that line.
Besides Moore, who obviously
stood to gain financially from the adoption of multiline
technology, some Members of Congress and Government research
officers had reservations about the Postal Service’s Zip + 4 policy
and its intended reliance on single-line readers. Critics maligned
single-line scanning technology, objected to the foreign sources of
single-line scanners, decried the burden of remembering the four
extra numbers,[
Footnote 1] and
echoed the conclusion reached by the United States Office of
Technology Assessment, that use of the single-line scanners in
preference to multiliners would cost the Postal Service $1 million
a day in operational losses.
Moore built on this opposition to Zip + 4, by
lobbying Members of Congress, testifying before congressional
committees, and supporting a “Buy American” rider to the Postal
Service’s 1985 appropriations bill. Notwithstanding alleged
requests by the Postmaster General to be quiet, REI followed its
agenda by hiring a public-relations firm, Gnau and Associates, Inc.
(GAI), which one of the Postal Service’s governors, Peter Voss, had
recommended.
The campaign succeeded, and in July 1985 the
Postal Service made what it called a “mid-course correction” and
embraced multiline technology. Brief for Respondent 4. But the
change of heart did not extend to Moore and REI, for the Service’s
ensuing order of multiline equipment, valued somewhere between $250
million and $400 million went to a competing firm.
Not only did REI lose out on the contract, but
Moore and REI were soon entangled in two investigations by Postal
Service inspectors. The first looked into the purported payment of
kickbacks by GAI to Governor Voss for Voss’s recommendations of
GAI’s services, as in the case of REI; the second sought to
document REI’s possibly improper role in the search for a new
Postmaster General. Notwithstanding very limited evidence linking
Moore and REI to any wrongdoing, an Assistant United States
Attorney decided to bring criminal charges against them, and in
1988 the grand jury indicted Moore, REI, and REI’s vice president.
At the close of the Government’s case, after six weeks of trial,
however, the District Court concluded that there was a “complete
lack of direct evidence” connecting the defendants to any of the
criminal wrongdoing alleged, and it granted the REI defendants’
motion for judgment of acquittal.
United States v.
Recognition Equip. Inc., 725 F. Supp. 587, 596 (DC
1989).
Moore then brought an action in the Northern
District of Texas for civil liability under
Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388
(1971),[
Footnote 2] against the
prosecutor and the five postal inspectors who are petitioners here
(a sixth having died). His complaint raised five causes of action,
only one of which is relevant here, the claim that the prosecutor
and the inspectors had engineered his criminal prosecution in
retaliation for criticism of the Postal Service, thus violating the
First Amendment. In the course of these proceedings Moore has
argued, among other things, that the postal inspectors launched a
criminal investigation against him well before they had any inkling
of either of the two schemes mentioned above, that the inspectors
targeted him for his lobbying activities, and that they pressured
the United States Attorney’s Office to have him indicted.
Moore also sought recovery from the United States under the Federal
Tort Claims Act (FTCA). The District Court dismissed the claims
against the Assistant United States Attorney in accordance with the
absolute immunity for prosecutorial judgment, and rejected an
abuse-of-process claim against the inspectors.
Moore v.
Valder, Civil Action No. 3:91–CV–2491–G (ND Tex., Sept.
21, 1992).[
Footnote 3]
The claims remaining were transferred to the
District Court for the District of Columbia, where Moore’s suit was
dismissed in its entirety, Civ. Nos. 92–2288 (NHJ), 93–0324 (NHJ),
1993 WL 405785 (Sept. 24, 1993), only to have the Court of Appeals
for the District of Columbia Circuit reinstate the
retaliatory-prosecution claim.
Moore v.
Valder,
65 F. 3d 189 (1995). The District Court then permitted limited
discovery on that matter so far as the inspectors were involved,
but again dismissed the remaining charges against the United States
and the prosecutor.
Moore v.
Valder, Civil Action
No. 92–2288 (NHJ) et al., Record, Tab No. 32 (Memorandum
Opinion, Feb. 5, 1998). Although Moore succeeded in having the
District of Columbia Circuit reinstate his FTCA claim against the
United States, the dismissal of his claims against the prosecutor
was affirmed.
Moore v.
United States, 213
F. 3d 705 (2000).
With the remainder of the case back in
District Court, the inspectors moved for summary judgment, urging
that because the underlying criminal charges were supported by
probable cause they were entitled to qualified immunity from a
retaliatory-prosecution suit. The District Court denied the motion,
and the Court of Appeals affirmed. 388 F. 3d 871 (2004).
The Courts of Appeals have divided on the
issue of requiring evidence of a lack of probable cause in 42 U.
S. C. §1983 and
Bivens retaliatory-prosecution suits.
Some Circuits burden plaintiffs with the obligation to show its
absence. See,
e.g., Wood v.
Kesler, 323
F. 3d 872, 883 (CA11 2003);
Keenan v.
Tejeda, 290 F. 3d 252, 260 (CA5 2002);
Mozzochi v.
Borden, 959 F. 2d 1174,
1179–1180 (CA2 1992). Others, including the District of Columbia
Circuit, impose no such requirement. See,
e.g.,
Poole v.
County of Otero, 271 F. 3d 955, 961
(CA10 2001);
Haynesworth v.
Miller, 820
F. 2d 1245, 1256–1257 (CADC 1987). We granted certiorari, 545
U. S. ___ (2005), to resolve the Circuit split and now reverse.
II
Official reprisal for protected
speech “offends the Constitution [because] it threatens to inhibit
exercise of the protected right,”
Crawford-El v.
Britton, 523 U. S. 574, 588, n. 10 (1998),
and the law is settled that as a general matter the First Amendment
prohibits government officials from subjecting an individual to
retaliatory actions, including criminal prosecutions, for speaking
out,
id., at 592; see also
Perry v.
Sindermann,
408 U. S. 593, 597
(1972) (noting that the government may not punish a person or
deprive him of a benefit on the basis of his “constitutionally
protected speech”). 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; Mt. Healthy City Bd. of Ed. v.
Doyle, 429 U. S. 274, 283–284 (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.
III
Despite a procedural
history portending another Jarndyce v.
Jarndyce,[Footnote 4]
the issue before us is straightforward: whether a plaintiff in a
retaliatory-prosecution action must plead and show the absence of
probable cause for pressing the underlying criminal
charges.[Footnote 5]
A
The inspectors argue
on two fronts that absence of probable cause should be an essential
element. Without such a requirement, they first say, the
Bivens claim is too readily available. A plaintiff can
afflict a public officer with disruption and expense by alleging
nothing more, in practical terms, than action with a retaliatory
animus, a subjective condition too easy to claim and too hard to
defend against. Brief for Petitioners 21–23; see also National
Archives and Records Admin. v. Favish, 541 U. S. 157, 175
(2004) (allegations of government misconduct are “ ‘easy to
allege and hard to disprove’ ”). In the inspectors’ view, some
“objective” burden must be imposed on these plaintiffs, simply to
filter out the frivolous. The second argument complements the
first, for the inspectors believe that the traditional tort of
malicious prosecution tells us what the objective requirement
should be. Brief for Petitioners 24–29. In an action for malicious
prosecution after an acquittal, a plaintiff must show that the
criminal action was begun without probable cause for charging the
crime in the first place; the inspectors see retaliatory
prosecution under Bivens as a close cousin of malicious
prosecution under common law, making the latter’s no-probable-cause
requirement a natural feature of the constitutional tort. See
Heck v. Humphrey, 512 U. S. 477, 483–485,
and 484, n. 4 (1994).
B
In fact, we think
there is a fair argument for what the inspectors call an
“objective” fact requirement in this type of case, but the nub of
that argument differs from the two they set out, which we will deal
with only briefly. As for the invitation to rely on common-law
parallels, we certainly are ready to look at the elements of
common-law torts when we think about elements of actions for
constitutional violations, see Carey v. Piphus,
435 U. S. 247,
258 (1978), but the common law is best understood here more as a
source of inspired examples than of prefabricated components of
Bivens torts. See, e.g., Albright v.
Oliver, 510
U. S. 266, 277, n. 1 (1994) (Ginsburg, J., concurring);
Bivens, supra, at 394; cf. Baker v.
McCollan, 443 U. S. 137, 146
(1979). And in this instance we could debate whether the closer
common-law analog to retaliatory prosecution is malicious
prosecution (with its no-probable-cause element) or abuse of
process (without it). Compare Heck, 512 U. S., at 483–485,
and 484, n. 4 with id., at 493–496 (Souter, J.,
concurring in judgment).
Nor is there much
leverage in the fear that without a filter to screen out claims
federal prosecutors and federal courts will be unduly put upon by
the volume of litigation. The basic concern is fair enough, but the
slate is not blank. Over the past 25 years fewer than two dozen
damages actions for retaliatory prosecution under Bivens
or §1983 have come squarely before the Federal Courts of Appeals,
and there is no disproportion of those cases in Circuits that do
not require showing an absence of probable cause.[Footnote 6]
C
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; Mt.
Healthy, 429 U. S., at 285–287, 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. See, e.g., Pickering v. Board
of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 566–567
(1968) (allegation that a school board dismissed a teacher for
writing a public letter critical of the board’s financial
administration). While the employee plaintiff obviously must plead
and prove adverse official action in retaliation for making the
statements, our discussions of the elements of the constitutional
tort do not specify any necessary details about proof of a
connection between the retaliatory animus and the discharge, which
will depend on the circumstances. Cf. Crawford-El,
supra, at 593 (“[A]t least with certain types of claims,
proof of an improper motive is not sufficient to establish a
constitutional violation—there must also be evidence of
causation”). The cases have simply taken the evidence of the motive
and the discharge as sufficient for a circumstantial demonstration
that the one caused the other. See, e.g., Mt.
Healthy, supra, at 287; see also Arlington
Heights v. Metropolitan Housing Development Corp.,
429 U. S. 252,
270, n. 21 (1977). It is clear, moreover, that the causation is
understood to be but-for causation, without which the adverse
action would not have been taken; we say that upon a prima facie
showing of retaliatory harm, the burden shifts to the defendant
official to demonstrate that even without the impetus to retaliate
he would have taken the action complained of (such as firing the
employee). See Mt. Healthy, 429 U. S., at 287. If there is
a finding that retaliation was not the but-for cause of the
discharge, the claim fails for lack of causal connection between
unconstitutional motive and resulting harm, despite proof of some
retaliatory animus in the official’s mind. See ibid. It
may be dishonorable to act with an unconstitutional motive and
perhaps in some instances be unlawful, but action colored by some
degree of bad motive does not amount to a constitutional tort if
that action would have been taken anyway. See Crawford-El,
supra, at 593; Mt. Healthy, supra, at
285–286.
When the claimed retaliation for
protected conduct is a criminal charge, however, a constitutional
tort action will differ from this standard case in two ways. Like
any other plaintiff charging official retaliatory action, the
plaintiff in a retaliatory-prosecution claim must prove the
elements of retaliatory animus as the cause of injury, and the
defendant will have the same opportunity to respond to a prima
facie case by showing that the action would have been taken anyway,
independently of any retaliatory animus. What is different about a
prosecution case, however, is that there will always be a distinct
body of highly valuable circumstantial evidence available and apt
to prove or disprove retaliatory causation, namely evidence showing
whether there was or was not probable cause to bring the criminal
charge. Demonstrating that there was no probable cause for the
underlying criminal charge 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 prosecution would have occurred
even without a retaliatory motive. This alone does not mean, of
course, that a Bivens or §1983 plaintiff should be
required to plead and prove no probable cause, but it does mean
that litigating probable cause will be highly likely in any
retaliatory-prosecution case, owing to its powerful evidentiary
significance.[Footnote
7]
The second respect in which a
retaliatory-prosecution case is different also goes to the
causation that a Bivens plaintiff must prove; the
difference is that the requisite causation between the defendant’s
retaliatory animus and the plaintiff’s injury is usually more
complex than it is in other retaliation cases, and the need to show
this more complex connection supports a requirement that no
probable cause be alleged and proven. A Bivens (or §1983)
action for retaliatory prosecution will not be brought against the
prosecutor, who is absolutely immune from liability for the
decision to prosecute, Imbler v. Pachtman,
424 U. S. 409,
431 (1976).[Footnote 8]
Instead, the defendant will be a non-prosecutor, an official, like
an inspector here, who may have influenced the prosecutorial
decision but did not himself make it, and the cause of action will
not be strictly for retaliatory prosecution, but for successful
retaliatory inducement to prosecute.[Footnote 9] The consequence is that a plaintiff like Moore
must show that the nonprosecuting official acted in retaliation,
and must also show that he induced the prosecutor to bring charges
that would not have been initiated without his urging.
Thus, the causal connection
required here 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. See 213
F. 3d, at 710 (“In order to find that a defendant procured a
prosecution, the plaintiff must establish ‘a chain of causation’
linking the defendant’s actions with the initiation of criminal
proceedings”); see also Barts v. Joyner, 865
F. 2d 1187, 1195 (CA11 1989) (plaintiff seeking damages
incident to her criminal prosecution would have to show that the
police, who allegedly acted in violation of law in securing her
arrest, unduly pressured or deceived prosecutors); Dellums
v. Powell, 566 F. 2d 167, 192–193 (CADC 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); cf. Smiddy v.
Varney, 665 F. 2d 261, 267 (CA9 1981) (“[W]here
police officers do not act maliciously or with reckless disregard
for the rights of an arrested person, they are not liable for
damages suffered by the arrested person after a district attorney
files charges unless the presumption of independent judgment by the
district attorney is rebutted”).
Herein lies the distinct problem
of causation in cases like this one. Evidence of an inspector’s
animus does not necessarily show that the inspector induced the
action of a prosecutor who would not have pressed charges
otherwise. Moreover, to the factual difficulty of divining the
influence of an investigator or other law enforcement officer upon
the prosecutor’s mind, there is an added legal obstacle in the
longstanding presumption of regularity accorded to prosecutorial
decisionmaking. See Reno v. American-Arab
Anti-Discrimination Comm., 525 U. S. 471, 489–490
(1999); United States v. Armstrong, 517 U. S. 456, 464–466 (1996). And
this presumption that a prosecutor has legitimate grounds for the
action he takes is one we do not lightly discard, given our
position that judicial intrusion into executive discretion of such
high order should be minimal, see Wayte v. United
States, 470 U.
S. 598, 607–608 (1985).
Some sort of allegation, then, is
needed both to bridge the gap between the nonprosecuting government
agent’s motive and the prosecutor’s action, and to address the
presumption of prosecutorial regularity. And at the trial stage,
some evidence must link the allegedly retaliatory official to a
prosecutor whose action has injured the plaintiff. The connection,
to be alleged and shown, is the absence of probable
cause.
It would be open to us, of course,
to give no special prominence to an absence of probable cause in
bridging the causal gap, and to address this distinct causation
concern at a merely general level, leaving it to such pleading and
proof as the circumstances allow. A prosecutor’s disclosure of
retaliatory thinking on his part, for example, would be of great
significance in addressing the presumption and closing the gap. So
would evidence that a prosecutor was nothing but a rubber stamp for
his investigative staff or the police. Cf. Mt. Healthy,
429 U. S., at 281–283. (evidence that the board of education, which
formally decided not to rehire a teacher, was only nominally
distinct from the school superintendent, who allegedly bore the
retaliatory animus). In fact, though, these examples are likely to
be rare and consequently poor guides in structuring a cause of
action. In most cases, for instance, it would be unrealistic to
expect a prosecutor to reveal his mind even to the degree that this
record discloses, with its reported statement by the prosecutor
that he was not galvanized by the merits of the case, but sought
the indictment against Moore because he wanted to attract the
interest of a law firm looking for a tough trial lawyer.[Footnote 10]
Accordingly, the significance of
probable cause or the lack of it looms large, being a potential
feature of every case, with obvious evidentiary value. True, it is
not necessarily dispositive: showing an absence of probable cause
may not be conclusive that the inducement succeeded, and showing
its presence does not guarantee that inducement was not the but-for
fact in a prosecutor’s decision. But a retaliatory motive on the
part of an official urging prosecution combined with an absence of
probable cause supporting the prosecutor’s decision to go forward
are reasonable grounds to suspend the presumption of regularity
behind the charging decision, see Bordenkircher v.
Hayes, 434
U. S. 357, 364 (1978) (emphasizing that “so long as the
prosecutor has probable cause,” the charging decision is generally
discretionary), and enough for a prima facie inference that the
unconstitutionally motivated inducement infected the prosecutor’s
decision to bring the charge.
Our sense is that the very
significance of probable cause means that a requirement to plead
and prove its absence will usually be cost free by any incremental
reckoning. The issue is so likely to be raised by some party at
some point that treating it as important enough to be an element
will be a way to address the issue of causation without adding to
time or expense. See n. 7, supra. In this case, for
example, Moore cannot succeed in the retaliation claim without
showing that the Assistant United States Attorney was worse than
just an unabashed careerist, and if he can show that the prosecutor
had no probable cause, the claim of retaliation will have some
vitality.
In sum, the complexity of
causation in a claim that prosecution was induced by an official
bent on retaliation should be addressed specifically in defining
the elements of the tort. Probable cause or its absence will be at
least an evidentiary issue in practically all such cases. 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.
The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
The Chief Justice and
Justice Alito took no part in the consideration or decision of this
case.
Footnote 1
See, e.g., Seaberry,
Durenberger Begins Campaign Against Nine-Digit Zip Code, Washington
Post, Feb. 24, 1981, p. E4 (describing Senator David Durenberger’s
reference to the Zip + 4 campaign as “ ‘a mnemonic plague of
contagious digititous’ ”).
Footnote 2
“Bivens established that
the victims of a constitutional violation by a federal agent have a
right to recover damages against the official in federal court
despite the absence of any statute conferring such a right.”
Carlson v. Green, 446 U. S. 14, 18 (1980).
Though more limited in some respects not relevant here, a
Bivens action is the federal analog to suits brought
against state officials under Rev. Stat. §1979, 42 U. S. C.
§1983. See Wilson v. Layne, 526 U. S. 603, 609
(1999); see also Waxman & Morrison, What Kind of Immunity?
Federal Officers, State Criminal Law, and the Supremacy Clause, 112
Yale L. J. 2195, 2208 (2003) (“Section 1983 applies … to state and
local officers, [and] the Supreme Court in Bivens . . .
inferred a parallel damages action against federal
officers”).
Footnote 3
Moore and his wife had originally
filed this complaint jointly. Her claims were dismissed for lack of
standing.
Footnote 4
See 2 C. Dickens, Bleak House 85
(1853).
Footnote 5
Moore contends that we (like the
Court of Appeals before us) exceed our appellate jurisdiction when
we address the issue of probable cause, see Brief for Respondent
37–39, but his argument is mistaken. It is true that the
disagreement over a no-probable-cause requirement arose on the
inspectors’ motion for summary judgment on their qualified-immunity
defense; Moore stresses that an interlocutory appeal can be taken
from the rejection of qualified immunity at the summary-judgment
stage only on questions turning on the definition of the violation,
not on the sufficiency of the evidence to show that a defendant is
in fact entitled to the immunity claimed. See Mitchell v.
Forsyth, 472 U. S. 511, 528
(1985). Moore says that the issue of probable cause or its absence
is simply an evidentiary matter going to entitlement in fact. But
the inspectors are making more than a claim about the evidence in
this case: they are arguing that we should hold that a showing of
no probable cause is an element of the kind of claim Moore is
making against them. In agreeing with the inspectors, we are
addressing a requirement of causation, which Moore must plead and
prove in order to win, and our holding does not go beyond a
definition of an element of the tort, directly implicated by the
defense of qualified immunity and properly before us on
interlocutory appeal. See ibid.; see also
Crawford-El v. Britton, 523 U. S. 574, 588, 592–593 (1998);
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 285–286
(1977).
Footnote 6
In fact, many of the appellate
challenges have been brought in the Second, Fifth, and Eleventh
Circuits, all of which require plaintiffs to show an absence of
probable cause. See, e.g., Izen v.
Catalina, 398 F. 3d 363 (CA5 2005) (per curiam);
Wood v. Kesler, 323 F. 3d 872 (CA11 2003);
Keenan v. Tejeda, 290 F. 3d 252 (CA5 2002);
Singer v. Fulton County Sheriff, 63 F. 3d
110 (CA2 1995); Post v. Fort Lauderdale, 7
F. 3d 1552 (CA11 1993); Mozzochi v. Borden,
959 F. 2d 1174 (CA2 1992); Magnotti v.
Kuntz, 918 F. 2d 364 (CA2 1990).
Footnote 7
Indeed, even though the Court of
Appeals in this case held that plaintiffs do not have to show an
absence of probable cause in order to make retaliatory-prosecution
claims, it nevertheless acknowledged probable cause’s significance
in such suits. See 388 F. 3d 871, 881 (CADC 2004) (“Given that
probable cause ordinarily suffices to initiate a prosecution, that
showing will be enough in most cases to establish that prosecution
would have occurred absent bad intent. A Bivens recovery
remains possible, however, in those rare cases where strong motive
evidence combines with weak probable cause to support a finding
that the prosecution would not have occurred but for the officials’
retaliatory animus”).
Footnote 8
An action could still be brought
against a prosecutor for conduct taken in an investigatory
capacity, to which absolute immunity does not extend. See
Buckley v. Fitzsimmons, 509 U. S. 259, 274–276
(1993) (no absolute immunity when prosecutor acts in administrative
capacity); Burns v. Reed, 500 U. S. 478, 492–495
(1991) (absolute immunity does not attach when a prosecutor offers
legal advice to the police regarding interrogation practices). In
fact, Moore’s complaint charged the prosecutor with acting in an
investigative as well as in a prosecutorial capacity, see App. 45,
but dismissal of the complaint as against the prosecutor was
affirmed in 213 F. 3d 705, 710 (CADC 2000), and no claim
against him is before us now.
Footnote 9
No one here claims that simply
conducting a retaliatory investigation with a view to promote a
prosecution is a constitutional tort. That is not part of Moore’s
complaint. See App. 33–34, 38–45. Whether the expense or other
adverse consequences of a retaliatory investigation would ever
justify recognizing such an investigation as a distinct
constitutional violation is not before us.
Footnote
10
Some may suggest that we should
structure a cause of action in the alternative, dispensing with a
requirement to show no probable cause when a plaintiff has evidence
of a direct admission by a prosecutor that, irrespective of
probable cause, the prosecutor’s sole purpose in initiating a
criminal prosecution was to acquiesce to the inducements of other
government agents, who themselves harbored retaliatory animus. Cf.
United States v. Armstrong, 517 U. S. 456, 469, n. 3 (1996)
(leaving open the question “whether a [criminal] defendant must
satisfy the similarly situated requirement in a case ‘involving
direct admissions by [prosecutors] of discriminatory
purpose’ ” (brackets in original)). But this would seem a
little like proposing that retirement plans include the possibility
of winning the lottery. Unambiguous admissions of successful
inducement are likely to be rare, and hassles over the adequacy of
admissions will be the predictable result, if any exemption to a
no-probable-cause requirement is allowed.
Comments
Be the first to comment
Leave a Comment