If the government chooses to prosecute someone for a crime simply to retaliate for that individuals criticisms of the government, can that individual sue the investigating officers for retaliatory prosecution if the government's case, although retaliatory, was supported by probable cause?
William Moore was CEO of a company that manufactured optical scanning technology. In an effort to establish a sales contract for that technology with the United States Postal Service, Moore initiated a media and lobbying campaign that criticized the technology and policies the USPS had in place. It was later revealed that individuals involved in Moore's campaign had entered into two illegal payoff schemes, and, at the urging of the USPS, the government prosecuted Moore for involvement in those schemes. The government's case against Moore was quickly dismissed, and Moore brought a civil suit against the prosecutor and postal inspectors claiming they had prosecuted him to retaliate for his criticism of the USPS. After a series of hearings before trial and appellate courts, Moore's claim against the prosecutor has been dismissed and the Supreme Court must now decide whether the postal inspectors are immune from suit because the prosecution, although retaliatory, was supported by probable cause.
Questions as Framed for the Court by the Parties
Whether law enforcement agents may be liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, for retaliatory prosecution in violation of the First Amendment when the prosecution was supported by probable cause.
William Moore was CEO of Recognition Equipment, Inc. (REI), a company that specialized in optical scanning technology. Moore v. Hartman, 388 F.3d 871, 873 (D.C. Cir 2004) (Moore I). Specifically, REI manufactured multi-line optical character readers (MLOCRs) that, initially developed with funding from the United States Postal Service (USPS), promised to substantially improve the automated mail sorting process. Id. Unfortunately for Moore and REI, the Postmaster General was opposed to the MLOCRs, preferring the Zip + 4 sorting approach that only required single-line optical character readers. Id. Amazingly, a political ly charged battle erupted over the relative merits of MLOCRs and the Zip + 4 system, and REI became involved, engaging in media and lobbying campaigns to promote MLOCRs. Id. As a part of its lobbying efforts, REI acted on the advice of USPS Governor Peter Voss and hired a consulting firm, Gnau & Associates (GAI). Id. at 874. Although Moore's efforts succeeded in convincing the USPS Board of Governors to adopt the multi-line technology, the USPS Postal Inspection Service uncovered two criminal schemes that at least nominally implicated REI. Id. at 873-74. Relevant to this case, USPS inspectors found that Voss and GAI had agreed to share the proceeds of the consultation contract between REI and GAI. Id. at 874.
Relevant to this case, Moore, his company REI, and REIs Vice President for Marketing, Robert Reedy were also indicted and charged with conspiracy to defraud the United States, mail and wire fraud, theft of property used by the Postal Service, and receiving stolen property. Brief for the Petitioners at 7, Hartman v. Moore, U.S. (No. 04-1495) The indictment also alleged that Moore knew of and participated in Voss and GAIs kickback agreement. Id. Six weeks into trial the case was dismissed for insufficient evidence. Moore I at 874. Moore then filed two civil claims against the prosecutor and six postal employees (one of whom is now deceased) seeking damages. The first was a claim of unconstitutional claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), which Moore filed in the Northern District of Texas. Id. The second, in the same district, came under the Federal Tort Claims Act. Id. The Texas federal court dismissed Moore's claims against the prosecutor citing absolute immunity, and, citing qualified immunity, dismissed a Fifth Amendment abuse-of-process claim against the inspectors; the remaining claims were transferred to the U.S. District Court of Columbia, which dismissed the entire suit. Id. The United States Court of Appeals for the District of Columbia reinstated certain claims against the prosecutor as well as the retaliatory prosecution Bivens claim against the postal inspectors. Id. On remand, the district court dismissed the inspectors motion for summary judgment and allowed limited discovery on the retaliatory prosecution claim, but it dismissed Moore's claims against the prosecutor and the United States. Id. Moore again appealed and the Court of Appeals affirmed the district courts ruling. Id.
The inspectors moved for summary judgment on the retaliatory prosecution claim, arguing that they were protected by qualified immunity because probable cause had supported their case against Moore, and, in the alternative, that there was insufficient evidence of retaliatory motive. Id. at 875. The district court denied the inspectors motion and they petitioned the Court of Appeals for an interlocutory appeal. The Court of Appeals heard the appeal and affirmed.
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.
This case will require the Court to balance the reach of First Amendment protections against the Courts stated reluctance to review prosecutorial decisionmaking. The inspectors do make a number of compelling arguments in favor of judicial deference, many of which the Court itself has observed. The power to prosecute crimes is a core power of the Executive Branch, requiring judicial deference. Brief for the Petitioners at 19. In addition, prosecutors are uniquely trained and competent to consider the factors involved in commencing a criminal prosecution, and these factors are particularly ill-suited to judicial review. Id. at 20. T here is a risk that concerns with subsequent judicial review will deter prosecutors and inspectors. Id. Or, judicial review could delay criminal proceedings if a criminal defendant were able to introduce a claim in the course of the government's prosecution. Id. But, as Moore points out, the defendants in this case are postal inspectors, not the prosecutor-whose case was dismissed due to absolute immunity. Brief for Respondent at 23. Although the postal inspectors in this case still fall under the Executive Branch and are therefore due a degree of deference from the courts, concerns over judicial interference with prosecutorial decisionmaking do not weigh as heavi ly on behalf of enforcement officers.
Of course, there are substantial constitutional concerns at issue in this case as well. Principally, as both the Court of Appeals and Moore point out, were the courts to require that a claim of retaliatory prosecution include a showing that there was no probable cause, advocates of politically unpopular speech would be susceptible to expressly retaliatory prosecution, provided the prosecutor could show some semblance of probable cause. Moore I at 879.
This case also provides the Court with an opportunity to resolve the split in the law among the Circuit Courts. The second step of the qualified immunity test established by Wilson v. Layne, 526 U.S. 603 (1999), points out how problematic the current state of the law is. In its Wilson analysis, the Court of Appeals states that the USPS should have informed its inspectors of the state of the law after the D.C. Circuit decided Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir. 1987). Id. at 885. As the postal inspectors point out, five of the Circuits hold that a claim of retaliatory prosecution requires a showing of the absence of probable cause. Brief for the Petitioners at 24-25. And as the Court of Appeals pointe d out two Circuits do not consider probable cause dispositive. Moore I at 879. Exactly what instructions would the USPS give to its inspectors under these circumstances? And would they be required to conduct their investigations differently in each Circuit? At the very least this illustrates the need for direction from the Supreme Court.
In deciding this case, the Court will determine whether the presence of probable cause precludes an individual from bringing a claim of retaliatory prosecution. In doing so, the Court will need to weigh the scope of protections offered by the First Amendment against their reluctance to review acts of prosecutorial discretion. The Courts decision will resolve a split among most of the Circuit Courts on the relevance of probable cause to claims of retaliatory prosecution and provide important guidance for prosecutorial decisions in the future.Written by:
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