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Opinion analysis: The First Amendment, probable cause and questions left unanswered

On Tuesday, in Nieves v. Bartlett, a majority finally agreed on a standard for how probable cause affects a civil damages action for First Amendment retaliatory arrest under 42 U.S.C. § 1983: A plaintiff must show the absence of probable cause to arrest as an element of the claim and the presence of probable cause will defeat most claims, unless 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.” But the decision produced five opinions and left questions for the lower courts to resolve, hopefully “commonsensically.”

The case arises from events at Alaska’s Arctic Man, which Chief Justice John Roberts described in his majority opinion as “an event known for both extreme sports and extreme alcohol consumption.” Two Alaska state troopers, Luis Nieves and Bryce Weight, arrested Russell Bartlett, an allegedly intoxicated and belligerent participant in the festival, charging him with disorderly conduct and resisting arrest. Bartlett alleged that the arrest was in retaliation for his efforts to challenge officers’ attempts to question a teen and for an earlier encounter in which Bartlett refused to speak with Nieves. Bartlett alleged that, in effecting the arrest, Nieves said, “[B]et you wish you would have talked to me now.”

Roberts for the court

Roberts wrote the opinion for the court, joined in full by Justices Stephen Breyer, Samuel Alito, Elena Kagan and Brett Kavanaugh, and by Justice Clarence Thomas in all but one part.

Roberts began with the requirement that a plaintiff seeking to establish First Amendment retaliation must establish a causal connection between the defendant officer’s retaliatory animus and the constitutional injury, in which the retaliatory motive is a “but-for” cause of the injury and the defendant would not have taken the adverse action absent the retaliatory motive. In some cases, such as employment claims under Mt. Healthy City Board of Education v. Doyle, the connection is straightforward — evidence of defendant motive and adverse action constitutes circumstantial evidence of retaliation, shifting the burden to the defendant to show that he would have taken the challenged action without the improper motive. In other cases, however, showing retaliation involves “causal complexities.” In Hartman v. Moore, the court held that a plaintiff alleging retaliatory prosecution had to plead and prove the absence of probable cause for the underlying criminal charge; such cases are complex because the alleged retaliatory motive belongs to the police officer, while the decision to proceed with charges belongs to a prosecutor who is immune from suit and whose decisions receive a presumption of regularity. The absence of probable cause has high probative value to reinforce the officer’s retaliatory motive.

The majority agreed as a “general matter” with the defendants that a retaliatory-arrest claim involves the same “causal complexities” as retaliatory-prosecution claims and requires the same element of lack of probable cause. Although the decisionmaker and the motivated actor are not separated as they are in Hartman, “it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff’s potentially criminal conduct.” Probable-cause evidence is available in most retaliatory-arrest cases. Protected speech by the arrestee also may be a “wholly legitimate consideration” for officers deciding whether to make an arrest; in this case, for example, the defendants testified that they perceived Bartlett as a threat because of the content and tone of his speech, in addition to his posture and apparent intoxication. The majority produced an amalgam of Mt. Healthy and Hartman. The plaintiff must plead and prove absence of probable cause; if he cannot do so, the claim fails. If he establishes lack of probable cause, Mt Healthy governs, as the court held it did for claims challenging retaliatory municipal policies.

The majority rejected Bartlett’s focus on subjective motive as inconsistent with the court’s approach in other relation contexts, such as the Fourth Amendment. It would allow “doubtful” retaliatory-arrest claims to proceed on allegations about the officer’s mental state, something easy to allege and difficult to prove. This would impose on officers “overwhelming litigation risks,” in which a stray comment by the officer envelops him in “years of litigation,” This would cause “undue apprehension” in officers, making it hard for them to discharge their duties.

Roberts added one “narrow qualification,” losing Thomas’ vote but retaining a majority. A plaintiff need not show the absence of probable cause when he presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech were not. This qualification addresses cases in which the officer had probable cause to arrest but typically would exercise his discretion not to do so. As an example, the court pointed to an arrest of a vocal critic of the police for jaywalking, a crime that police rarely enforce. Evidence of probable cause would do little to show a causal connection between animus and injury, while providing insufficient protections for First Amendment rights.

The majority concluded by holding that neither of Bartlett’s claims could survive summary judgment. The record lacked any evidence of retaliation by Weight, who was not involved in the earlier encounter between Bartlett and Nieves; any seemingly retaliatory comments by Nieves do not show what motivated Weight. In any event, there was, objectively, probable cause to arrest Bartlett on those charges, as even the lower court acknowledged.

Thomas, concurring in part and concurring in the judgment

Thomas joined most of the majority opinion, except for the “narrow qualification,” which he argued “has no basis in either the common law or our First Amendment precedents.” He complained that the narrow qualification “threatens to derail” the court’s retaliation jurisprudence. The exception is not limited to jaywalking, but may apply to serious felonies. And it will produce protracted litigation about which individuals are similarly situated, imposing on officers the chilling effect and fear of liability that support the probable-cause rule in the first place. Thomas, alone among the justices, would hold that the presence of probable cause always defeats a First Amendment retaliation claim.

Gorsuch, concurring in part and dissenting in part

Justice Neil Gorsuch began from the premise that probable cause cannot undo a First Amendment violation or erase its significance. Given the growth of criminal law and government regulation to cover “so much previously innocent conduct,” “almost anyone can be arrested for something.” If probable cause erased a First Amendment violation, “little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

Rhetoric aside, Gorsuch emphasized the independent purpose and unique protections of the First Amendment. Although probable cause renders a search or seizure reasonable so as to preclude a Fourth Amendment claim, the First Amendment operates on its own and provides different protections. While the Fourth Amendment protects against officers acting without proper authority, the First Amendment protects against officers who abuse that lawful authority by engaging in conduct for an impermissible reason. The better First Amendment analogy is to the 14th Amendment, which prohibits otherwise-authorized law enforcement actions when done for racially discriminatory reasons and seeks to prevent the exercise of lawful authority for unlawful (racially discriminatory) reasons. Both the First and 14th Amendments serve purposes distinct from the Fourth Amendment, and neither should be encumbered by a probable-cause element that defeats all claims.

The key precedent for Gorsuch was not Hartman, but United States v. Armstrong, which the majority cited, but did not elaborate on, to support its exception. Armstrong held that racially selective prosecutions could violate equal protection even when the prosecutor had probable cause, but required “clear evidence” of discrimination, such as evidence of other charging decisions and statements by the prosecutor indicating discriminatory purpose. Gorsuch argued that it is at least an “open question” whether the concerns driving Armstrong are present in this type of retaliatory-arrest case.

Gorsuch closed by attempting to reframe and broaden the majority’s exception. It was not limited to comparison-based evidence and should not be read as such. Rather, in citing Armstrong, the majority left open the possibility that other direct evidence, such as admissions, could be used to prove a retaliatory-arrest claim, just as it might prove a retaliatory-prosecution claim. He insisted that he and the majority were in agreement: Absence of probable cause is not an absolute requirement and its presence not an absolute defense, although it may bear on causation. The rest, including how to prove the exceptional case, awaits another case.

Ginsburg concurring in the judgment in part and dissenting in part

Justice Ruth Bader Ginsburg wrote a short dissent, arguing that “[a]rrest authority … can be abused to disrupt the exercise of First Amendment speech and press rights.” She argued that Mt. Healthy struck the correct balance, by requiring the plaintiff to show unconstitutional animus as a motivating factor and shifting the burden to the defendant to demonstrate that he would have taken the same action without an improper motive.

Ginsburg agreed that summary judgment was proper as to Weight and that the evidence of Nieves’ statements was likely not sufficient to survive summary judgment. But she “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.”

Sotomayor dissenting

The lone dissenter, Justice Sonia Sotomayor began by framing the divisions among the justices. Eight justices reached the “correct and sensible bottom line” that probable cause does not always suffice to defeat a First Amendment retaliatory-arrest claim. But a slimmer majority of five justices announced a different rule — probable cause will defeat a claim unless the plaintiff “happens to be able to show” that people who did not engage in the same speech but otherwise were similarly situated were not arrested.

Like Ginsburg, Sotomayor believed Mt. Healthy could do the work. Like Gorsuch, Sotomayor believed that a plaintiff might be able to prove retaliation, even when probable cause is present, with evidence other than comparison. But she was less sanguine than Gorsuch that the majority’s rule leaves room for such other forms of proof. Instead, the majority’s rule “arbitrarily fetishizes one specific type of motive evidence—treatment of comparators—at the expense of other modes of proof,” in particular, evidence of the officer’s own statements and other “direct” evidence showing the officer’s motivation for arresting a suspect. She was careful not to overstate the clarity of the majority opinion — which did not explain what objective evidence or similarly situated mean. And she hoped that lower courts will approach the new standard “commonsensically,” so that the rule will not in practice become the absolute bar the majority rejected.

But Sotomayor was not confident, believing the majority’s rule “risks letting flagrant violations go unremedied.” The only obvious beneficiary of the rule is an arrestee singled out at protests or other large public gatherings, with a robust pool of potential comparators. But she offered other cases that, she feared, would not be viable under the majority’s rule. One example was a bystander arrested for trespassing to prevent her from recording a police interaction when no other people were around (and not recording) to be used as comparators. Another involved a reporter investigating police corruption, stopped and ticketed for going five mph over the speed limit, but unable to offer evidence that the ticketing officer warned him that the tickets would keep coming “until you find something else to write about.”

Recommended Citation: Howard M. Wasserman, Opinion analysis: The First Amendment, probable cause and questions left unanswered, SCOTUSblog (May. 28, 2019, 9:56 PM),