Courtesy of James R. Touchstone, Esq.
On May 28, 2019, the Supreme Court of the United States, in Nieves v. Bartlett, 2019 U.S. LEXIS 3557 (May 28, 2019) held that a plaintiff’s retaliatory arrest claim must pass a threshold showing of the absence of probable cause. The Court held the presence of probable cause will defeat most claims, except where a plaintiff presents “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
Arctic Man is an annual weeklong sports festival held in a remote part of Alaska during which a small community of a few dozen becomes transformed temporarily into a campground that the Supreme Court called “one of the largest and most raucous cities in Alaska.” Freezing temperatures and excessive alcohol consumption are common during the course of the festival. Due to the remote location, police availability is limited to patrol the event.
On the final night of Arctic Man in 2014 at about 1:30 a.m., Sergeant Luis Nieves was speaking to a group of festival attendees to ask them to move their alcohol to the inside of their RV to keep them from minors. According to Nieves, an apparently intoxicated Russell Bartlett started yelling at the RV owners not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves moved away. Bartlett disputed Nieves’s version of events, claiming that he was not drunk at that time and did not yell at Nieves.
Several minutes later, Bartlett saw Trooper Bryce Weight talking with a minor. Weight was questioning the minor about whether he and his underage friends had been drinking. According to Weight, Bartlett approached him in an aggressive manner, stood between Weight and the minor during Weight’s questioning, and yelled with slurred speech that Weight should not speak with the minor. According to Weight, when Bartlett stepped very close to him in a combative way, Weight pushed him back. Nieves saw the confrontation and came over quickly right after Weight pushed Bartlett. Nieves initiated an arrest. Bartlett was slow to comply, the officers forced him to the ground. According to Bartlett, he was not aggressive, stood close to Weight because he wanted to be heard over loud music, and was slow to comply because of a back injury. Bartlett claimed that after he was handcuffed, Nieves said “bet you wish you would have talked to me now.” Bartlett was arrested for disorderly conduct and resisting arrest. He had sustained no injuries and was released a few hours later. The State ultimately dismissed criminal charges against Bartlett.
Bartlett sued under 42 U.S.C. section 1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech—meaning his initial refusal to speak with Nieves and his intervention in Weight’s discussion with the minor. The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest precluded Bartlett’s claim. The Ninth Circuit reversed, holding that probable cause does not defeat a retaliatory arrest claim under its prior decision in Ford v. Yakima. The Ninth Circuit concluded that Bartlett’s affidavit regarding what Nieves allegedly said after the arrest could enable Bartlett to prove that the officers’ desire to chill his speech was a but-for cause of the arrest. The officers petitioned for review, and the United States Supreme Court granted certiorari.
The Supreme Court granted review of the case to resolve the issue of whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment. The Court first explained that “as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). If an official takes adverse action against someone based on retaliation for the individual’s expression of protected speech, and “non-retaliatory grounds are in fact insufficient to provoke the adverse consequences,” the injured person may generally seek relief by bringing a First Amendment claim. Id. To prevail on such a claim, a plaintiff must establish not only that the official was motivated by a “retaliatory animus” and that the motive caused plaintiff’s subsequent injury, but also that the adverse action against the plaintiff would not have been taken absent the retaliatory motive (i.e., the motive was a “but-for” cause of the injury). Id., at 259-260. See also Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 283-284 (1977)).
The Court explained that establishing such a “causal connection” in retaliation claims can be complex. For example, in retaliatory prosecution cases, the official alleged to have the retaliatory motive does not carry out the retaliatory action himself. Instead, a prosecutor decides whether to bring charges, and prosecutors are generally immune from suit and their charging decisions have a presumption of regularity. To account for this causation issue, plaintiffs in retaliatory prosecution cases must plead and prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. Hartman v. Moore, 547 U.S. 250, 263. Hartman adopted this requirement because “[d]emonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive.” Id., at 261.
Officers Nieves and Weight, here, argued that the same no-probable-cause threshold requirement should apply to retaliatory arrest claims because of parallels to the causal complexities that Hartman identified for retaliatory prosecution claims. The Supreme Court observed that its prior decision in Reichle v. Howards recognized, and Lozman v. Riviera Beachreaffirmed, that retaliatory arrest claims do indeed face some of the same causality challenges identified in Hartman: “[R]etaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury.” Reichle, 566 U.S., at 668. The Court explained that the causal inquiry is complex because protected speech is often completely legitimate for officers to consider when deciding whether to make an arrest; officers frequently must make split-second judgments when deciding whether to arrest; and the content and manner of a suspect’s speech might provide vital information—for example, if the suspect is ready to cooperate or alternatively presents a continuing threat.
The Court also explained that evidence of the absence or presence of probable cause for the arrest would be available in almost every retaliatory arrest case. As with retaliatory prosecution claims, the absence of probable cause “will generally provide weighty evidence that the officers’ animus caused the arrest, whereas its presence will suggest the opposite.” Although retaliatory arrest cases do not implicate the presumption of prosecutorial regularity as it is in retaliatory prosecution claims, the Court explained that “the ultimate problem remains the same. For both claims, it is particularly difficult to determine whether the adverse government action was caused by the officers’ malice or by the plaintiff’s potentially criminal conduct.” Thus, the same solution should apply in retaliatory arrest claims: the plaintiff must plead and prove the absence of probable cause for the arrest.
Bartlett argued in his brief that causation in retaliatory arrest cases need “is not inherently complex” because the “factfinder simply must determine whether the officer intended to punish the plaintiff for the plaintiff’s protected speech.” The Court found that this approach improperly “dismisses the need for any threshold objective showing, moving directly to consideration of the officers’ subjective intent.” The Court observed that, in the Fourth Amendment context, the Supreme Court has “almost uniformly rejected invitations to probe [officers’] subjective intent,” and Bartlett’s purely subjective approach would undermine that precedent by making the constitutionality of an arrest “vary from place to place and from time to time” depending on the personal motives of individual officers, and would encourage officers to minimize communication during arrests to avoid having their words scrutinized for hints of improper motive. On the other hand, adopting Hartman’s no-probable-cause threshold addresses those concerns by its clear objective standard. Absent a showing of no probable cause for arrest, a retaliatory arrest claim fails. But if the plaintiff establishes the absence of probable cause, then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the arrest, and, if that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation.
The Court found this conclusion in harmony with the common law approach for related tort claims. The Court explained that when defining the contours of a Section 1983 claim, “this Court looks to ‘common-law principles that were well settled at the time of its enactment. ’”Kalina v. Fletcher, 522 U. S. 118, 123 (1997). In 1871, when Section 1983 was enacted, there was no common law tort for retaliatory arrest based on protected speech. The “closest analog[s],” are false imprisonment and malicious prosecution, and these both led, the Court observed, to the same result: The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim.
Observing that States permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations, the Court made “a narrow qualification…for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” The Court maintained that in such cases an “unyielding” requirement to show the absence of probable cause could present a risk that some police officers would exploit the arrest power as a means of suppressing speech. As an example, the Court explained that jaywalking at an intersection is “endemic but rarely results in an arrest,” but an individual who complained verbally about police conduct might be arrested subsequently for jaywalking in possible retaliation. If the individual’s retaliatory arrest claim were to be dismissed on the ground that there was undoubted probable cause for the jaywalking arrest, “applying Hartman’s rule would come at the expense of Hartman’s logic” because the dismissal in this context would be “insufficiently protective of First Amendment rights.”
The Court therefore found that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Cf. United States v. Armstrong, 517 U. S. 456, 465 (1996). The Court explained that because this inquiry is objective, the statements and motivations of the particular arresting officer would be irrelevant at this stage. After making the required showing, the plaintiff’s claim could proceed in the same way as claims where the plaintiff had met the threshold showing of the absence of probable cause.
Turning to the circumstances here, the Court found insufficient evidence of retaliation on the part of Trooper Weight. The only evidence of retaliatory animus identified by the Ninth Circuit was Bartlett’s affidavit stating that Sergeant Nieves said “bet you wish you would have talked to me now.” However, that allegation about Nieves did not reveal anything about what motivated Weight, who did not know about Bartlett’s prior encounter with Nieves. That aside, the Court concluded that there was probable cause to arrest Bartlett: Nieves initiated Bartlett’s arrest with knowledge that Bartlett had been drinking, had seen Bartlett talking loudly and standing close to Weight, and Nieves had seen Weight push Bartlett back. The Court concluded that because there was probable cause to arrest Bartlett, his retaliatory arrest claim failed as a matter of law. The United States Supreme Court accordingly reversed the Ninth Circuit’s judgment, and remanded.
Justice Gorsuch concurred in the judgment in part and dissented in part. Gorsuch explained that a First Amendment retaliatory arrest claim serves a different purpose than a Fourth Amendment unreasonable arrest claim, and that purpose does not depend on the presence or absence of probable cause. The Court thus had “no legitimate basis for engrafting a no-probable-cause requirement onto a First Amendment retaliatory arrest claim.” Gorsuch explained that he agreed with the majority that “the absence of probable cause is not an absolute requirement of such a claim and its presence is not an absolute defense,” yet Gorsuch did not take that to mean that probable cause was categorically irrelevant because it might bear on causation in certain cases and play a role under United States v. Armstrong. Armstrong held a plaintiff was required to show “clear evidence” of prohibited purpose in a case concerning equal-protection-based selective-prosecution claims; Gorsuch pondered a similar standard for the retaliatory arrest context. “But rather than attempt to sort out precisely when and how probable cause plays a role in First Amendment claims, I would reserve decision on those questions until they are properly presented to this Court and we can address them with the benefit of full adversarial testing.”
Justice Ginsburg concurred in the judgment in part and dissented in part. She argued that because arrest authority can be used to disrupt the exercise of First Amendment speech and press rights, and given the array of laws proscribing, only entirely baseless arrests would be checked if failure to show absence of probable cause automatically defeated a Section 1983 action. Ginsburg argued Mt. Healthy strikes the right balance: “The plaintiff bears the burden of demonstrating that unconstitutional animus was a motivating factor for an adverse action; the burden then shifts to the defendant to demonstrate that, even without any impetus to retaliate, the defendant would have taken the action complained of.” Here, Ginsburg agreed with the majority’s reversal as to Trooper Weight due to lack of evidence of retaliation, and agreed the evidence of Nieves’ animus was not enough to survive summary judgment. But Ginsburg “would not use this thin case to state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”
Justice Sotomayor dissented, finding no basis in Section 1983 or in the First Amendment to withhold a remedy for an arrest that violated the First Amendment “solely because the officer could point to probable cause that some offense, no matter how trivial or obviously pretextual, has occurred.” Referring to the majority’s “similarly situated” sole exception, Sotomayor said “the basic error of the Court’s new rule is that it arbitrarily fetishizes one specific type of motive evidence—treatment of comparators—at the expense of other modes of proof,” such as an officer’s own statements. In Sotomayor’s view, the majority’s approach would risk letting even flagrant violations go unremedied, and would yield arbitrary results. Instead, the “well-established, carefully calibrated standards that govern First Amendment retaliation claims” were the correct approach. She agreed with Ginsburg that the “tried-and-true Mt. Healthy approach remains the correct one.” She felt the “causal complexity” problems that the majority presented were appropriately and traditionally addressed by this standard.
HOW THIS AFFECTS YOUR AGENCY
Nieves builds on recent Supreme Court cases that emphasize application of an objective standard in cases dealing with police matters. While those cases typically involved Fourth Amendment probable cause issues, Nieves is a First Amendment case. The Nieves case clarifies the law in this complex area will make it more difficult for a person to establish a retaliatory First Amendment claim against law enforcement officers. In sum, a plaintiff must now prove, as part of his or her case, that the law enforcement officer did not have probable cause for the arrest before a plaintiff can pursue a First Amendment retaliation claim in most cases. This rule would not apply if the plaintiff can establish, by objective evidence, that he or she was arrested “when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” By taking this approach, the Court was cognizant of protecting First Amendment rights, while balancing the need to protect law enforcement officers from a deluge of baseless First Amendment retaliation claims.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 706 F. 3d 1188 (9th Cir. 2013).
 566 U. S. 658 (2012).
 585 U. S. ___, 138 S. Ct. 1945 (2018).
 Ashcroft v. al-Kidd, 563 U. S. 731, 737 (2011).
 Devenpeck v. Alford, 543 U. S. 146, 154 (2004).
 Heck v. Humphrey, 512 U. S. 477, 484 (1994)
 517 U. S. 456 (1996); Justice Gorsuch found Armstrong the proper case to consider