The Supreme Court granted certiorari in
Moore to resolve this split amongst the circuits, and while this case was pending on appeal the Court recently held that “want of probable cause must be alleged and proven” by a plaintiff bringing a
§ 1983 or
Bivens suit for retaliatory prosecution.
Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). The Court offered two main rationales for its holding: the issue of probable cause will likely be relevant in “any retaliatory-prosecution case,”
id. at 1704, and “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,”
id. As to the former, the Court explained that retaliatory-prosecution cases are unique in 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.”
Id. Thus, the issue of probable cause will necessarily have “powerful evidentiary significance.”
Id. With regard to the issue of causation, the Court emphasized that the
§ 1983 or
Bivens action is brought against an official who “may have influenced the prosecutorial decision but did not himself make it” rather than against the prosecutor herself.
Id. at 1705. The Court explained that: