The U.S. Supreme Court recently resolved an issue that had been frustrating the courts for many years. In Nieves v. Bartlett, 139 S. Ct. 1715 (2019), the court held that as a strong general rule probable cause to arrest defeats a §1983 free speech retaliatory arrest claim against an arresting officer.

The justices wrote five separate opinions. Chief Justice John G. Roberts Jr., wrote the opinion for the court, which was joined by Justices Stephen Breyer, Samuel Alito, Elena Kagan, Brett Kavanaugh and, for the most part, by Justice Clarence Thomas. Justice Thomas's concurrence opined that probable cause should defeat all retaliatory arrest claims. Justices Neil Gorsuch, Ruth Bader Ginsberg and Sonia Sotomayor in their separate opinions urged that probable cause should not defeat a retaliatory arrest claim.

'Nieves' Background

The encounter between Russell Bartlett and Sergeant Luis Nieves occurred during “Arctic Man,” a weeklong “raucous” water sports festival in Alaska “known for both extreme sports and extreme alcohol consumption.” Nieves, 138 S.Ct. at 1720. According to Nieves, Bartlett belligerently yelled at RV owners not to speak to the police, and asked Nieves to leave. When Bartlett saw Trooper Bryce Weight ask a teenager whether he and his friends had been drinking, Bartlett yelled that Weight should not speak to the minor. Bartlett denied that he was aggressive and claimed it was Nieves who was aggressive.

One thing led to another and eventually Nieves and Weight arrested Bartlett for disorderly conduct and resisting arrest. According to Bartlett, after he was arrested and handcuffed Nieves told him, “[B]et you wish you would have talked to me now.” Bartlett was released a few hours later and the charges were dropped. He then sued Nieves and Weight in federal court under §1983 challenging the constitutionality of his arrest.

There was no question that “[t]he officers had probable cause to arrest Bartlett … .” Nieves, 139 S. Ct. at 1720. That satisfied the Fourth Amendment. But Bartlett alleged that the arrest violated his First Amendment free speech rights because it was in retaliation for his refusal to speak to Nieves and for telling Weight not to speak to the “underage partygoer.” The question was whether probable cause defeated Bartlett's free speech retaliatory arrest claim.

The circuit courts had been split on the issue. For example, the U.S. Court of Appeals for the Ninth Circuit in Bartlett v. Nieves, 712 Fed. Appx. 613 (9th Cir. 2019) held that probable cause does not automatically defeat a First Amendment retaliatory arrest claim. By contrast, the U.S. Court of Appeals for the Second Circuit has long held that probable cause absolutely bars a First Amendment retaliatory arrest claim. Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001); Mozzochi v. Borden, 959 F.2d 1174 (2d Cir. 1992). The Supreme Court in Nieves agreed with this later view.

The issue implicates fundamental competing concerns. If probable cause did not defeat the claim, it would allow an arrest to be challenged on the ground that it was in retaliation for, e.g., the arrestee's political bumper sticker, a social media posting, letter to the editor, or criticism of the officer. On the other hand, because it is pretty easy to establish probable cause for large numbers of minor crimes like disorderly conduct, disturbing the peace, and resisting arrest, if probable cause automatically defeated all free speech retaliatory arrest claims, some police officers might abuse their arrest authority to stifle an arrestee's free speech rights.

Precedent

There were three key Supreme Court precedents leading up to Nieves v. Bartlett. In Hartman v. Moore, 547 U.S. 250 (2006), the court held that probable cause defeats a First Amendment retaliatory prosecution claim. Such a claim cannot be brought against the prosecutor who commenced the prosecution because the decision to prosecute is shielded by absolute prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409 (1976). The claim can only be brought against a law enforcement officer, like a police officer, who, with an impermissible motive to retaliate, influenced the decision to prosecute.

The chain of causation between the police officer and the prosecutor is complex because, “even when an officer's animus is clear, it does not necessarily show that the officer 'induced the action of the prosecutor who would not have pressed charges otherwise.'” Nieves, 139 S. Ct. at 1723 (quoting Hartman, 547 U.S. at 263). A showing of no probable cause “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.” Hartman, 547 U.S. at 261.

William Moore was acquitted in 1989 of a number of postal related crimes. In 1995 he commenced a Bivens action alleging, inter alia, a retaliatory prosecution claim against the postal investigators. The civil action produced at least 17 judicial opinions. Moore v. Hartman, 102 F. Supp. 3d 35, 48 D.D.C.2015). The U.S. Supreme Court in 2006 referred “to a procedural history portending another Jarndyce v. Jarndyce.” Hartman v. Moore, 547 U.S. at 256 (citing Charles Dickens, Bleak House (1853)). Undaunted, the attorneys litigated the case for yet another decade, until it finally ended with a judgment for the defendants in 2015. 102 F. Supp. 3d 35. Perhaps in the back (or front) of Chief Justice Roberts's mind was that he did not want Nieves v. Bartlett to turn into a Hartman/Jarndyce rerun.

The Supreme Court in Hartman v. Moore did not resolve whether probable cause defeats a First Amendment retaliatory arrest claim. Retaliatory arrest claims do not present the difficult multiplayer causation issue in retaliatory prosecution cases. But they do present a different type of complex causation issue stemming from the fact that police officers often must make on-the-spot decisions whether a suspect's speech shows that he is a continuing threat justifying an arrest, or that he is ready to cooperate, perhaps justifying the officer backing off and forgoing arrest. The absence of probable cause generally provides “weighty evidence that the officer's animus caused the arrest, whereas the presence of probable cause will suggest the opposite.” Nieves, 129 S. Ct. at 1724.

In Reichle v. Howards, 566 U.S. 658 (2012), the court held only that because the law governing the impact of probable cause on a First Amendment retaliatory arrest claim was not clearly established, qualified immunity protected the defendant officers from liability. The court in Reichle sidestepped the constitutional merits issue.

In Lozman v. Riviera Beach, 138 S. Ct. 1945 (2018), the court decided that probable cause does not defeat a First Amendment claim asserted against an “official municipal policy” of retaliation. As the court in Lozman recognized, it would be very unusual for a municipality to have such a policy. A claim directed at an alleged retaliatory policy is “far afield from the typical retaliatory arrest claim” against the arresting officer. Nieves, 139 S. Ct. at 1945. While the court in Lozman detailed the arguments for and against a probable cause requirement, it did not resolve the broader issue of whether probable cause defeats a First Amendment retaliatory arrest claim against an arresting officer.

That was the issue in Nieves v. Bartlett. The Supreme Court in Nieves held that as a strong general rule probable cause to arrest defeats a First Amendment retaliatory arrest claim against an arresting officer. The plaintiff, therefore, must plead and prove, as an element of the claim, the absence of probable cause. The court relied upon the complex causation issue, the fact that retaliatory motive is “'easy to allege and hard to disprove,'” (Crawford v. Britton, 574 U.S. 574,585 (1998)), and that an allegation of subjective motive could trigger “'broad ranging discovery'” (Nieves, 139 S. Ct. at 1725 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982))). And, if retaliatory motive sufficed to make out a constitutional claim, officers might be deterred from making certain arrests, and might “minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive … .” Nieves, 139 S. Ct. at 1725.

Common Law Principles

The court's determination that probable cause defeats retaliatory arrest claims was “confirmed by the common law approach to similar tort claims,” which considers probable cause a complete defense to claims of false imprisonment or false arrest. See 139 S. Ct. at 1726 and n.2 (“… the torts of false imprisonment and false arrest … are 'virtually synonymous.'”) (citation omitted). The Supreme Court has often relied upon common law tort principles as either controlling or persuasive on a wide range of §1983 issues, including causation, immunities, accrual of claim, the doctrine of Heck v. Humphrey (512 U.S. 477 (1994)), and compensatory and punitive damages.

Narrow Exception

It the plaintiff establishes a lack of probable cause, the plaintiff will then have to prove that the arresting officer's retaliatory motive was the “but-for” cause of the arrest, meaning that the plaintiff would not have been arrested absent the retaliatory motive. Nieves, 139 S.Ct. at 1722. Under the dual motive framework established by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), the plaintiff must show that her constitutionally protected conduct was a “substantial” or “motivating” factor for the arrest. If the plaintiff makes this showing, the officer may seek to establish that he would have arrested the plaintiff in the absence of the plaintiff's protected speech. The causation issue is ultimately one of the fact for the trier of fact.

The court in Nieves was concerned that an “unyielding requirement” to prove lack of probable cause might lead some police officers to exploit their arrest power as a means of suppressing speech. As noted earlier, there is a vast array of low-level misdemeanor offenses for which it is often generally easy to establish probable cause. The court gave “arrest for jaywalking” as an example. This concern led the court to carve out a “narrow” exception under which probable cause does not defeat the free speech retaliation claim when the “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.” Nieves, 139 S. Ct. at 1727 (emphasis added). “Because this inquiry is objective, the statements and motivations of the particular arresting officer [such as Sergeant Nieves's saying, “Bet you wish you would have talked to me now”], are 'irrelevant' at this stage.” 139 S. Ct. at 1727.

Query, what if Sergeant Nieves had said, “I wouldn't have arrested anyone else in these circumstances. But your wise aleck remarks were just too much.”? Justice Sotomayor gave the example of an officer's statement, “I am arresting the libertarians, but not the non-libertarian protesters who were also trespassing.” 139 S.Ct. at 1741.

If the plaintiff shows that other similarly situated individuals not engaged in protected speech would not have been arrested, his claim will proceed in the same manner as if he demonstrated a lack of probable cause, that is, the plaintiff must show illicit motive and causation under Mt. Healthy.

The “similarly situated persons” exception is analogous to a “class-of-one” equal protection claim. In class-of-one equal protection cases the plaintiff must show that the relevant characteristics of the similarly situated comparators are very similar to those of the plaintiff. Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses §3.10 (4th ed. Wolters Kluwer). While large numbers of §1983 equal protection “class-of-one” claims are asserted, relatively few succeed. Id. The same fate likely awaits claims under the “narrow” Nieves exception.

Concurrence, Dissent

Justices Gorsuch, Ginsburg, and Sotomayor found no basis for the court's strong general rule that probable cause defeats a First Amendment retaliatory arrest claim. Gorsuch (concurring in part and dissenting in part) stressed that a First Amendment retaliatory arrest claim is separate from a Fourth Amendment arrest without probable cause claim, and that the First and Fourth Amendments serve different purposes and guarantee different protections. Justices Ginsburg (concurring in part) and Sotomayor (dissenting) urged that a First Amendment retaliatory arrest claim should be analyzed in the same manner as any other First Amendment retaliation claim and that Mt. Healthy provides the appropriate causation framework.

Justices Gorsuch and Sotomayor also took issue with the court's rigid restrictions on the types of evidence that the plaintiff may present under the “similarly situated individuals” exception. Gorsuch disagreed with Sotomayor's view that the court has rigidly required plaintiffs who cannot prove absence of probable cause to introduce objective “comparison- based evidence in every case.” 139 S. Ct. at 1734. He opined that other kinds of evidence, such is admissions, may be sufficient for this purpose. The court however, clearly said that because the inquiry on this issue was “objective, the statements and motivations of the arresting officers are 'irrelevant'” on this issue. 139 S. Ct .at 1728.

Sotomayor criticized the court for disallowing consideration of the officer's own statements, which may well be the best evidence of the officer's illicit motive. Other “smoking gun” evidence may be difficult to obtain. She questioned why video evidence from an officer's body camera or an individual's smart phone may not be considered, and suggested that that, because “routine police reports—on which the majority surely must intend for plaintiffs to rely—are generally authored by, and thus 'statements of,' arresting officers,” it is more likely the court meant to exclude only statements describing the officer's internal thought processes, like “I hate libertarians.” Id. at 1741 n. 7

More fundamentally, it is very likely that the “comparative based evidence” the court requires as “the sole gateway through the probable cause barrier” is likely to be “prohibitively difficult to obtain” and “likely to prove vexing in most cases.” 139 S. Ct. at 1739-40 (Sotomayor, J., dissenting).

The decision in Nieves does not encompass a retaliation claim aimed at the manner in which an arrest was carried out. Probable cause should have no relevance on such a claim. See Campbell v. Mack, 2019 WL 2359419 (6th Cir. June 4, 2019) (law was clearly established that officer's retaliating against arrestee for complaining about officer's conduct, by tightening handcuffs to point of injury and subjecting arrestee to overly intrusive strip and body cavity searches, violates First Amendment).

Conclusion

To summarize the holdings of the Hartman-Lozman-Nieves trilogy:

(1) Probable cause defeats a retaliatory prosecution claim (Hartman).

(2) Probable cause does not defeat a retaliatory arrest claim against a municipality based upon an official policy of retaliation (Lozman).

(3) Probable cause defeats a retaliatory arrest claim against the arresting officer, except in narrow circumstances where the plaintiff presents objective evidence that he was arrested when other similarly situated individuals who had not engaged in the same sort of speech were not (Nieves).

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.