Between Healthy and Hartman: Probable Cause in Retaliatory Arrest Cases

This Note addresses a circuit split concerning retaliatory arrest claims. In most circuits, a defendant police officer cannot be held liable for retaliatory arrest if the arrest was made with probable cause. This is inconsistent with the Supreme Court’s decision in Mt. Healthy City School District Board of Education v. Doyle, which requires defendants in retaliation claims to show that they would have taken the same action in the absence of a retaliatory motive. But there are a number of exceptions to the Mt. Healthy rule, including the Supreme Court’s recent decision in Hartman v. Moore. In Hartman, the Supreme Court ruled that a plaintiff in a retaliatory prosecution claim must prove that the prosecutor brought charges without probable cause. This Note argues that courts should follow Hartman and require a plaintiff to prove the absence of probable cause only in a subset of retaliatory arrest cases: cases involving complex causation and cases where the officer had probable cause to believe that the plaintiff had committed a felony offense. In all other retaliatory arrest cases, courts should follow Mt. Healthy and permit plaintiffs to bring suit even if the officer had probable cause. This nuanced approach strikes the appropriate balance between free speech rights and the needs of law enforcement.