Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are "easy to allege and hard to disprove," they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by homing that plaintiffs in actions for retaliatory prosecution must plead and prove a lack of probable cause for pressing the underlying charge as an element of their claim. This Note argues that a careful reading of Hartman demonstrates that, despite the recent holdings and dicta of several courts, Hartman neither requires nor supports a rule that the presence of probable cause for effectuating the underlying arrest precludes a claim for First Amendment retaliatory arrest (the "no-probable-cause rule"). This Note also seeks to demonstrate that pre-Hartman cases applying the no-probable-cause rule in actions for retaliatory arrest are bad law. After freeing courts from the constraints of Hartman and pre-Hartman circuit precedent, this Note argues that both legal arguments and policy considerations counsel against application of the no-probable-cause rule in actions for retaliatory arrest.
TABLE OF CONTENTS INTRODUCTION I. HARTMAN: INAPPLICABLE IN THE ARREST CONTEXT A. Hartman Depends on the Presence of Objective Probable Cause Evidence and the "Causal Gap" 1. The Facts 2. The Result Depends on the Availability of Objective, Probative Probable Cause Evidence 3. The Result Depends on the "Causal Gap" that Makes Proving Lack of Probable Cause Necessary B. Hartman Does Not Control Because the "Causal Gap" Does Not Characterize the Arrest Action II. No PERSUASIVE LEGAL ARGUMENT EXISTS FOR IMPOSING THE NO-PROBABLE-CAUSE RULE IN ARREST ACTIONS A. The Presence of Probable Cause Does Not Prevent Plaintiffs from Proving the Causation Element B. Cases Applying the No-Probable-Cause Rule Pre-Hartman Are Unpersuasive III. PROPONENTS HAVE NOT ARTICULATED A PERSUASIVE POLICY RATIONALE FOR APPLYING THE RULE IN ARREST ACTIONS A. Courts Can Manage Arrest Actions Without Making the Claim More Difficult to Plead and Prove B. Courts' Should Not Fear a Surge in Retaliatory-Arrest Actions CONCLUSION INTRODUCTION
John Q. Activist is a well-known, if not notorious, government critic in the city of Hutchins. John earns income as a freelance food critic but spends much of his time writing, publishing, and distributing a weekly newsletter identifying and decrying the wasteful government spending of Hutchins's tax dollars. Of late, John has been particularly critical of the Hutchins Police Department's purchase of costly consulting services from Homeland Security Inc. John has claimed in print that the city did not bid the consulting contract competitively because of a romantic relationship between Police Chief Berkeley and Homeland's vice president of community relations. Both Hutchins and Chief Berkeley have denied the allegation.
Several weeks ago, while John was driving home from a long evening of editing at his downtown office, a Hutchins police officer pulled him over for failing to fully stop at a stop sign. John was clearly tired--his eyes were bloodshot and he was unable to give the exact hour or date. John explained to the officer that he had been up all night at his office attempting to meet a publishing deadline. The officer was finishing providing John with a warning regarding the dangers of driving while fatigued--preparing to let John leave without a ticket--when he noticed a stack of John's Hutchins Accountability Weekly newsletters piled on the passenger seat. The officer immediately recognized John as a local agitator and his demeanor shifted. The officer said John looked like he had been drinking and smelled a bit odd--maybe like alcohol. The officer asked John to get out of the car and, as he placed him under arrest for suspicion of drunk driving in violation of Hutchins law, remarked that "I hope this doesn't affect your ability to get that dishonest rag of yours to all your socialist friends in time for your next meeting."
John, freed from jail after ten long hours and no charges, was intimidated. Believing himself the victim of an arrest made solely to punish him for his irreverent reporting and to deter him from criticizing Hutchins officials in the future, John filed suit in federal district court. He cited the arresting officer's shift in demeanor and threatening reference to his work to support his contention that his arrest was unconstitutional retaliation for his exercise of his First Amendment right to publish carefully researched stories critical of his local government. During pretrial proceedings, the defendant officer claimed the arrest was fully constitutional because he had probable cause to believe that John had been drinking--the bleary eyes and incoherence, he asserts, are hallmarks of an intoxicated driver. The federal judge, crediting the officer's finding of probable cause, declined to inquire into the officer's actual reason for arresting John and dismissed the complaint. John is free, but reluctant to publish his weekly under what he perceives to be the threat of continued government harassment.
Courts agree that the First Amendment (1) protects individuals from retaliatory action motivated by the exercise of certain constitutional rights. (2) As the Tenth Circuit recently stated, "'[a]lthough retaliation is not expressly discussed in the First Amendment, it may be actionable inasmuch as governmental retaliation tends to chill citizens' exercise of their constitutional rights.'" (3)
Victims of state or federal retaliatory action may seek redress under section 1983 of the Civil Rights Act (4) or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. (5) Plaintiffs seeking to recover for allegedly unconstitutional retaliation must plead and prove (1) the existence of a right protected by the First Amendment; (2) that the exercise of that right was a substantial motivating factor in the decision to take the adverse action; and (3) that the adverse action chilled the exercise of the protected right. (6) Further, to prove the prima facie case, a plaintiff must demonstrate that his exercise of a First-Amendment-protected right was the "but-for" cause of the adverse action. (7) Conduct merely shaded by constitutionally impermissible motive does not rise to the level of a constitutional violation. (8) Consequently, a defendant may avoid liability if he can persuade the fact finder that he would have taken the challenged action notwithstanding any personal animus engendered by First Amendment conduct. (9)
A minority of jurists do reject the idea that section 1983 of the Civil Rights Act provides a tort cause of action for intent-based constitutional torts, but this rejection is limited. Critics of the majority view maintain that section 1983, as enacted, was meant only to provide a cause of action for damages against state agents acting pursuant to a duly enacted, but unconstitutional, state statute. (10) Notwithstanding their disagreement about the precise nature of the Civil Rights Act enacted by Congress, these jurists do not actively seek to abrogate current section 1983 jurisprudence, but instead support making intent-based constitutional torts more difficult to plead and prove. (11)
Courts agree less on the proper adjudicatory framework for resolving the subset of retaliation claims concerned with allegedly unconstitutional arrest. (12) Until recently, federal courts of appeals disagreed as to whether the presence of probable cause for effectuating the arrest that is the subject of a First Amendment retaliation action ought to preclude a plaintiff's recovery. (13) The Second and Eleventh Circuits held that as a matter of law a police officer is not liable for unconstitutional retaliation in an action by an arrestee where probable cause supported the underlying arrest. (14) These two circuits adhere to a "no-probable-cause rule" that places an additional burden on plaintiffs. (15) Reaching the opposite conclusion, the Sixth Circuit held that the existence of probable cause does not preclude a plaintiff's constitutional claim. (16) While the existence of probable cause has probative value in an action for retaliatory arrest, the Sixth Circuit reasoned, it by no means determines the action. (17)
A recent decision by the U.S. Supreme Court drastically altered the First Amendment retaliation landscape and complicated the role that probable cause plays in the analysis of claims for retaliatory arrest. In its 2006 decision in Hartman, the Court resolved a different circuit disagreement and made the absence of probable cause for pressing the underlying charge an element of a claim for First Amendment retaliatory prosecution. (18) In the eighteen months since the Court decided Hartman, courts addressing all manner of First Amendment retaliation actions have relied on Hartman in imposing the no probable-cause rule in various, non-prosecution settings. (19) After Hartman the Sixth Circuit determined that its earlier cases rejecting a no-probable-cause rule in the retaliatory-arrest action were no longer good law. (20)
Though a clearly defined circuit disagreement no longer exists, (21) the debate continues. Some federal courts of appeals have yet to rule on whether probable cause precludes an action for retaliatory arrest, and so the debate continues. Several state and federal district courts in jurisdictions whose highest court has not yet ruled on the no-probable-cause rule's application to actions for retaliatory arrest have declined to read Hartman to apply to situations alleging anything other than...
