*1 1003 MOORE, William G. Jr. and Blanche Moore, Appellees
K.
v. HARTMAN, al.,
Michael Appellants et Santos,
Antonio Appellee Sothan-Robbins,
Pamela Jean
Appellant America,
United Appellee. States of
No. 10-5334.
United States Court of Appeals,
District of Columbia Circuit.
Argued 6, Dec. 2012. 15, Jan.
Decided 2013. Hancock,
Catherine Y. Attorney, U.S. Department Justice, of argued cause the appellants. for With her on the briefs were Stuart Delery, F. Acting Assistant Attorney General, Jr., Ronald C. Machen U.S. Attorney, and Barbara Herwig, L. Attorney. P. Michael Abate Richard and Montague, Attorneys, Department U.S. of Justice, appearances. entered
Paul Michael argued Pohl the cause for appellees. him With on the briefs were *2 1004 and retaliato- retaliatory arrest Because Ko- T. Charles Vergonis and G. Christian constitutional distinct are ry prosecution
tuby, Jr. in precedent the and because violations 1988, in established clearly this Circuit ROGERS, and TATEL Before: by the Postal conduct challenged when the KAVANAUGH, Judges. Circuit the the of place, contours took Inspectors from free right be to First Amendment filed PER for the Court Opinion nothing in Reichle retaliatory prosecution, CURIAM. the absenee- that our conclusion changes by Circuit opinion filed Dissenting “an is not requirement of-probable-cause Judge KAVANAUGH. retaliation Amendment of a First element If V, at 424. 644 F.3d Moore violation.” the U.S. from
On Remand the that believe Inspectors Postal the Court Supreme it decide what meant to Reichle in Court PER CURIAM: to bring and in Hartman to decide refused involving case three old halt decades a this this has directed Court Supreme The in Reichle where that, unlike evidence in our decision whether to determine court conceded, close “comes cause was probable (D.C.Cir.2011) Hartman, F.3d 415 644 v. Moore v. smoking gun,” Moore to the proverbial “probable V”), holding that (“ Moore (D.C.Cir.2004) 871, Hartman, 884 388 F.3d First of the an element is not cause again to once ”), are free they III {“Moore in a violated” right allegedly Amendment Supreme the and certiorari ask for petition 423, suit, re id. at retaliatory prosecution saga. end to this if it wishes Court How v. of Reichle light in good law mains — 2088, 182 -, S.Ct. ards, 132 U.S. KAVANAUGH, Judge, Circuit (2012). There, examining in 985 L.Ed.2d dissenting: retaliatory ar governing the law whether v. How in Reichle In its recent decision the in clearly established claims was rest — 2088, 182 -, ards, 132 S.Ct. U.S. 2006, expressly Court in the Circuit Tenth (2012), Supreme Court the L.Ed.2d 985 the absence-of- whether to declined decide the whether not clear that it is indicated in identified requirement probable-cause requirement absence-of-probable-cause 265-66, 250, Moore, U.S. 547 v. Hartman Moore, 547 U.S. v. Hartman in identified (2006), is 441 1695, L.Ed.2d 164 126 S.Ct. 441 1695, L.Ed.2d 250, 252, 164 126 S.Ct. of the the scope defining read as “best scope the defining as (2006), is “best read estab simply as right or First Amendment simply or as right Amendment the First of recovery.” for a lishing prerequisite recovery.” for prerequisite establishing a Instead, n. 6. Reichle, at 2096 132 S.Ct. Because Reichle, 2096 n. 6. at 132 S.Ct. on in point Reichle is its decision on this hinged law the Court Amendment the First can Tenth this case clear, unsettled in Hartman the defendants that the fact not “clearly estab retal violated had conflated to have that not be said precedent Circuit Therefore, law. First Amendment prosecution lished” retaliatory and iatory arrest qualified to entitled are the defendants it Because 2094-96. at See id. claims. may proceed. not immunity, and the suit Tenth Circuit’s the whether uncertain was dissent. respectfully I clearly es law remained retaliatory arrest were in Reichle tablished, defendants the immunity. The Court qualified to
entitled the issue on agnostic was thus
in Reichle Moore V. holding in to our
central