Supreme Court Resolves Circuit Split re Whether Absence of Probable Cause Must Be Pleaded and Proved for Bivens Claims

Per Hartman v. Moore, --- S. Ct. ----, 2006 WL 1082843 (Apr. 26, 2006):

The Courts of Appeals have divided on the issue of requiring evidence of a lack of probable cause in 42 U.S.C. § 1983 and Bivens retaliatory-prosecution suits. Some Circuits burden plaintiffs with the obligation to show its absence. See, e.g., Wood v. Kesler, 323 F.3d 872, 883 (C.A.11 2003); Keenan v. Tejeda, 290 F.3d 252, 260 (C.A.5 2002); Mozzochi v. Borden, 959 F.2d 1174, 1179-1180 (C.A.2 1992). Others, including the District of Columbia Circuit, impose no such requirement. See, e.g., Poole v. County of Otero, 271 F.3d 955, 961 (C.A.10 2001); Haynesworth v. Miller, 820 F.2d 1245, 1256-1257 (C.A.D.C.1987). We granted certiorari, 545 U.S. ----, 125 S.Ct. 2977, 162 L.Ed.2d 886 (2005), to resolve the Circuit split and now reverse.

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In sum, the complexity of causation in a claim that prosecution was induced by an official bent on retaliation should be addressed specifically in defining the elements of the tort. Probable cause or its absence will be at least an evidentiary issue in practically all such cases. Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes sense to require such a showing as an element of a plaintiff's case, and we hold that it must be pleaded and proven. . . .

Souter, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined. Roberts, C. J., and Alito, J., took no part in the consideration or decision of the case.