Hartman v. Moore

The Court of Appeals for the District of Columbia Circuit focused on the extent to which qualified immunity protects public officials from civil liability. Moore I at 872. Recognizing that suits like Moore's are the principal avenue available for vindicating the rights of an individual targeted by retaliatory prosecution, the Court of Appeals held that qualified immunity is a function of fair notice: public officials are immune from liability for civil damages to the extent that their conduct does not violate statutory or constitutional rights of which a reasonable person would have known. Id. at 876. In order to balance the individuals interest in vindicating transgressed rights with the risk of unfairness to public officials held responsible on grounds they could no t have anticipated, the Court of Appeals followed the two-step qualified immunity inquiry established in Wilson. Id. The Wilson inquiry first required the court to determine the law governing claims of retaliatory prosecution and, second, whether that law was clearly established at the time of the indictment. Id. at 877.

The first step of the Wilson inquiry leads to the central dispute in this case: whether the presence of probable cause eliminates a claim of retaliatory prosecution. In the District of Columbia Circuit, under the precedent set by Haynesworth, probable cause is not determinative in a retaliatory prosecution claim. Id. at 877-78. As a result, the Court of Appeals followed a burden-shifting inquiry: once a plaintiff shows protected conduct to have been a motivating factor in the decision to press charges, the burden shifts to the officials to show that they would have pursued the case anyway. Id. at 878. The Court of Appeals was unwilling to extend preclusive effect to probable cause for three reasons. First, the court recognized, as a practical matter, that probable cause is just o ne factor among many that drive the decision to prosecute. Id. In addition, the court held that the low evidentiary threshold needed to show probable cause supposes a good faith exercise of governmental discretion. Id. at 879. If, after a showing of retaliatory intent, the courts maintained the presumption of good faith and gave determinative weight to probable cause, then public officials could safely bring marginal cases for politically unpopular speech and the First Amendment would only protect against baseless prosecutions. Id. Finally, addressing the need for judicial deference to prosecutorial discretion, the Court of Appeals noted the hol ding in Wayte v. United States, 470 U.S. 598, that decisions to prosecute may not be deliberately based on the exercise of constitutionally protected rights. Id. (quoting Wayte at 608). Accordingly, the Haynesworth burden-shifting regime only targets prosecutorial decisions in which retaliation was the but-for motivation; in cases where the prosecutor can show legitimate grounds-even when accompanied by retaliatory motive-Haynesworth does not intervene. Id. at 880.

The inspectors ground their argument in the Supreme Courts particular concern with judicial inquiry into prosecutorial decisionmaking. Brief for the Petitioners at 21 (quoting Wayte at 607). Drawing a comparison to claims of selective prosecution, which arise out of the Equal Protection Clause, the inspectors argue that claims of retaliatory prosecution should be required to satisfy an objective component in addition to the showing that the prosecution had a retaliatory motive. Id. In cases of selective prosecution, the plaintiff must first show that the prosecutio n was motivated by a discriminatory purpose and, second, that similarly situated individuals of a different group were treated differently. Id. at 22. The latter requirement, which the inspectors label the objective component, serves as a screening mechanism that obviates judicial review of prosecutorial discretion. Id. The inspectors go on to argue that there is no reason for treating constitutional challenges based on the First Amendment differently from those based on the Equal Protection Clause. Id. at 23. In fact, whereas race and the other characteristics protected by the Equal Protection Clause can never provide an appropriate grounds for prosecutorial decisionmaking, statements and other First Amendment-protected activity often provide a basis for prosecution. Id.

In the case of retaliatory prosecution, the inspectors argue the required objective component should be a showing of the absence of probable cause. Id. at 24. They find support for their position in the fact that five other Circuits require that a retaliatory prosecution claim must show an absence of probable cause. Id. at 25. Indeed, in Mozzochi v. Borden, the Fifth Circuit went so far as to say: [a]n individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause that is in reality an . . . attempt to deter or silence criticism of the government. 959 F.2d 1174, 1180 (2d Cir. 1992). For addi tional support, the inspectors look to the common-law tort action of malicious prosecution. Citing the Supreme Courts discussion of malicious prosecution in Heck v. Humphrey, 512 U.S. 477 (1994)-where the Court held that a claim of malicious prosecution must show there was no probable cause in the prior prosecution-the inspectors argue that the common law provides additional guidance for determining the scope of this constitutional claim. Brief for the Petitioners at 25-26.

Finally, the inspectors argue that the Court of Appeals decision failed to provide a unique rule for constitutional claims in the prosecutorial context. Id. at 31. Specifically, they find that the Haynesworth standard-targeting prosecutorial decisions where retaliation was the but-for cause of the prosecution-goes too far because it still allows discovery into the prosecutorial decisionmaking process. Id.

Moore's argument concentrates on the constitutional protections at issue in this case. Following from Crawford-El v. Britton, 523 U.S. 574 (1998), Moore argues that the First Amendment prevents government officials from subjecting citizens to adverse action on the basis of protected speech just as it prohibits Congress from directly regulating protected speech. Brief for Respondent at 17-18. Moreover, the general principle that the First Amendment prohibits otherwise-proper official actions that target protected speech has been extended to criminal prosecutions by Wayte. Id. at 19.

Moore then turns to the inspectors argument for a unique rule. Addressing the inspectors comparison to selective prosecution, Moore argues that the objective similarly situated requirement is a necessary part of any equal protection analysis, regardless of its context, because it is impossible to claim different treatment without reference to another group. Id. at 26. In the case of First Amendment claims, the standard analysis only asks whether the plaintiffs protected speech was the but-for cause of the government action. Id. at 28. Thus, it is not inconsistent for a retaliatory prosecution analysis to differ structurally from a selective prosecution analysis because the two claims derive from structurally different constitutional analyses. Moore also takes issue with the inspectors use of the common law tort doctrine of malicious prosecution. Moore points out that, just because a claim may not be sufficient under common law doctrine does not mean that common law doctrine should constrict the protections available under the Constitution. Id. at 31. Finally, Moore offers the simple observation that the defendants in this case are law enforcement officers, not prosecutors. Id. at 33. Thus, the inspectors appeals to judicial deference towards prosecutorial discretion are inapposite; although the courts may need to consider prosecutorial decisionmaking in this case, it will not be for the purpose o f second-guessing the prosecutor, but to consider whether Moore was injured by the inspectors efforts to procure the prosecution. Id.