Becker v. Kroll

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In Becker v. Kroll, 2007 U.S. App. LEXIS 17230 (10th Cir. July 19, 2007), the U.S. Court of Appeals for the Tenth Circuit held that a physician had a valid claim against state officials for retaliation against her under the First Amendment in connection with an investigation.

The Court also held that the physician could proceed directly to a jury trial on her claim that the State of Utah had defamed her in how it reported "Fraud Cases-Dismissals" on the state website.

Judge Timothy Tymkovich, writing for the unanimous panel, said this about the defense of absolute immunity:

The doctrine of absolute immunity, however, is not without limits. Prosecutors and other government officials are not entitled to immunity for administrative and investigative actions that may have influenced the decision to file criminal charges. See Hartman, 126 S. Ct. at 1704-05 & n.8 (noting a defendant may proceed in a retaliatory prosecution action against an official "who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute").

The Court also outlined this test for a claim of retaliation under the First Amendment:

To establish a § 1983 retaliation claim against non-immune officials, Becker must plead and prove (1) that she was engaged in a constitutionally protected activity; (2) that a defendant's action caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that a defendant's action was substantially motivated as a response to her exercise of her First Amendment speech rights. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). She also must plead and prove the absence of probable cause for the prosecution. Hartman, 126 S. Ct. at 1707.