![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Thank You For Submiting Feedback!
Some sort of allegation is needed both to bridge the gap between a nonprosecuting government agent's motive and the prosecutor's action, and to address the presumption of prosecutorial regularity, in a Bivens or 42 U.S.C.S. § 1983 action for retaliatory prosecution action. 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.
A company developed and manufactured a system for reading and sorting mail. The company's chief executive engaged in a lobbying and public-relations campaign to persuade the United States Postal Service to adopt the type of system that the company manufactured. The Postal Service ultimately agreed to do so, but ordered the requisite equipment from a competing firm. Subsequently, some Postal Service inspectors investigated the company and the chief executive for alleged involvement in a kickback scandal, and taking an allegedly improper role in the search for a new Postmaster General. A federal prosecutor brought criminal charges against the company and the chief executive, but a trial court--concluding that there was no direct evidence to connect the defendants to any criminal wrongdoing--acquitted the defendants. The chief executive brought a civil-damages action, on the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619, in the United States District Court for the Northern District of Texas against the prosecutor and the postal inspectors. The chief executive alleged, among other matters, that the inspectors had violated his free-speech rights under the Federal Constitution's First Amendment by targeting him for investigation in retaliation for his lobbying activities, and in pressuring the prosecutor’s office to have him indicted. The claims against the prosecutor were dismissed in accordance with the doctrine of absolute immunity for prosecutorial judgment, but the remaining claims were transferred to the United States District Court for the District of Columbia. Ultimately, the entire suit was dismissed, but the Court of Appeals reinstated the retaliatory-prosecution claim against the inspectors. Back in District Court, the inspectors moved for summary judgment, claiming that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity. The District Court denied the motion, and the Court of Appeals affirmed.
In a Bivens retaliatory prosecution, was it necessary to show that there was absence of probable cause for pressing underlying criminal charges against plaintiff?
The Court held that in a Bivens retaliatory-prosecution action, a plaintiff had to allege and prove that there was an absence of probable cause for pressing the underlying criminal charges against the plaintiff--and thus, the chief executive's complaint did not state an actionable First Amendment violation without such an allegation of the absence of probable cause because in such an action, evidence showing whether there was or was not probable cause was highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation. According to the Court, because evidence of an inspector’s animus did not necessarily show that the inspector induced the prosecutor to act when he would not have pressed charges otherwise and because of the longstanding presumption of regularity accorded prosecutorial decision-making, a showing of the absence of probable cause was needed to bridge the gap between the non-prosecuting government agent's retaliatory motive and the prosecutor's injurious action and to rebut the presumption.