Nahmod Law

Nieves v. Bartlett: The Court’s First Amendment Retaliatory Arrest Decision

The Supreme Court handed down Nieves v. Bartlett, No. 17-1174, on May 28, 2019. In an opinion by Chief Justice Roberts, the Court, resolving a split in the circuits, held that probable cause is a defense to a section 1983 claim against law enforcement officers accused of arresting a person in retaliation for his or her speech. But the Court provided what it called a “narrow qualification”: because officers have such wide-ranging discretion to make warrantless misdemeanor arrests for minor criminal offenses–with the potential for abuse of First Amendment rights–probable cause is not a defense where the plaintiff presents objective evidence that he or she was arrested when other similarly situated persons not engaged in the same protected conduct were not.

In Nieves, the plaintiff was arrested for disorderly conduct and resisting arrest in the setting of “Arctic Man,” a winter sports festival held in Paxson, Alaska: “During that week, the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska.” Criminal charges were eventually dismissed and the plaintiff thereafter filed his section 1983 complaint. The facts were disputed by the parties but the plaintiff alleged in his section 1983 claim that he was arrested in violation of the First Amendment in retaliation for failing to speak to one officer and for intervening in another officer’s discussion with an underage partygoer. The district court determined that there was probable cause to arrest the plaintiff for interfering with an investigation and for initiating a physical confrontation with one of the officers, and thus granted summary judgment in favor of the defendants. The Ninth Circuit reversed on the ground that probable cause is not a defense.  The Supreme Court in turn reversed the Ninth Circuit.

The Majority Opinion by Chief Justice Roberts

Chief Justice Roberts first noted that this issue–whether probable cause is a defense to a First Amendment claim of retaliatory arrest–had been before the Court twice previously (see https://nahmodlaw.com/?s=lozman) but was not resolved on the merits. He then went on to discuss the general requirement in First Amendment retaliation cases of proof by a plaintiff of but-for causation, citing Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977). He observed that in many retaliation cases, showing the causal connection between a defendant’s animus and the plaintiff’s injury is “straightforward.” But in situations involving claims of First Amendment retaliatory prosecution, the causal connection is much more attenuated, because an officer’s animus in making an arrest, for example, is not the retaliatory action itself, which is the separate act of a prosecutor in bringing charges. The related presumption of prosecutorial regularity was therefore a major reason that Hartman v. Moore, 547 U.S. 547 U.S. 250 (2006), ruled that a plaintiff bringing a section 1983 claim of First Amendment retaliatory prosecution must allege and prove the absence of probable cause in order to proceed further or, in other words, that the decision to press charges was objectively unreasonable.

Chief Justice Roberts, admitting that the two situations–retaliatory prosecutions and retaliatory arrests–are not identical, nevertheless concluded as a matter of policy that the Hartman requirement imposed on plaintiffs in First Amendment retaliatory prosecution cases should also apply to First Amendment retaliatory arrest cases. It accepted the officers’ contention that retaliatory arrest claims involve factual complexities parallel to those involved in retaliatory prosecution claims. For one thing, police officers made split-second decisions all the time, sometimes based on what was said. For another, the Fourth Amendment is an objective inquiry and a purely subjective approach would tend to undermine Fourth Amendment precedent and might even improperly set off wide-ranging discovery into an officer’s subjective state of mind, contrary to the thrust of qualified immunity and Harlow v. Fitzgerald, 457 U.S. 800 (1982). The Court also analogized retaliatory arrest to the common law tort of malicious prosecution, which has an absence of probable cause requirement imposed on plaintiffs.

Finally, Chief Justice Roberts, perhaps prodded by Justices Breyer and Kagan who might not otherwise have joined the opinion to create a majority, recognized that police officers have wide-ranging discretion to conduct misdemeanor arrests even for minor offenses, and could thereby abuse this discretion in violation of the First Amendment. It was therefore appropriate for a plaintiff in a First Amendment retaliation case to have the opportunity to show that, even where there was probable cause to arrest, this is not a defense where the plaintiff presents objective evidence that he or she was arrested when other similarly situated persons not engaged in the same protected conduct were not. This “narrow qualification” to its holding would protect the First Amendment adequately.

Justices Breyer, Alito, Kagan and Kavanaugh joined the Court’s opinion, as did Justice Thomas except for Part IID and its “narrow qualification.” Justice Thomas argued that the common law was clear that probable cause defeated false imprisonment, malicious arrest and malicious prosecution claims, and so the rule should be the same in section 1983 First Amendment retaliatory arrest cases.

Justice Gorsuch’s Opinion

Justice Gorsuch concurred in part and dissented in part in a thoughtful but rather conflicted opinion, observing that the presence of probable cause should not defeat a First Amendment retaliatory arrest as a matter of First Amendment doctrine. However, as a matter of section 1983 and Fourth Amendment policy, probable cause analysis is not “entirely irrelevant to the analysis.” In addition, probable cause may be relevant not only to causation but also to separation of powers and federalism. Thus, he argued that the Court should not at this time have carved out the “narrow qualification” that it did, apparently based on U.S. v. Armstrong, 517 U.S. 456 (1996), a racial discrimination selective prosecution case. He would have simply held “as the majority does, that the absence of probable cause is not an absolute requirement of such a claim and its presence is not an absolute defense.” He would leave for another day the harder probable cause and First Amendment questions until they were properly raised before the Court.

Justices Ginsburg’s and Sotomayor’s Opinions

Justice Ginsburg concurred in the judgment in part and dissented in part. In her view, Mt. Healthy was applicable: with its burden-shift to the defendant to show that, even without the impermissible motive, the defendant would have do the same thing anyway, Mt. Healthy struck the right balance between protecting free speech and section 1983 law enforcement defendants. “In any event, I 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. She agreed with the “eight Justices” majority that probable cause alone does not “always suffice[]” to defeat a section 1983 First Amendment retaliatory arrest claim. However, she strongly disagreed with a “slimmer majority” that a showing of probable cause defeats such a claim unless the person arrested can show that otherwise similarly situated individuals whose speech differed were not arrested (the “narrow qualification”). She commented that the majority did not really try to show how First Amendment or section 1983 doctrine supported this result. In her view, the Court should evaluate section 1983 First Amendment retaliatory arrest claims in the same way they evaluate other First Amendment retaliation claims: under the Mt. Healthy burden-shift test. This test, she pointed out, is not easily satisfied by many plaintiffs even when there is proof of retaliatory animus. Finally, she criticized the majority’s use of comparison-based evidence as “the sole gateway through the probable-cause barrier that it otherwise erects.” This, in her view, will lead to arbitrary results and shield unconstitutional conduct: “a particularly brazen officer could arrest on transparently speech-based grounds and check the statute books later for a potential justification.”

Comments

1. Nieves posed this choice for the Court: protect police officers or protect the First Amendment. The Court chose to protect police officers. It thereby mangled both section 1983 and the First Amendment. Consequently, Justices Ginsburg and Sotomayor got it right: Mt. Healthy should have governed section 1983 First Amendment retaliatory arrest claims.

2. The decision in Nieves stems from the Court’s misguided decision in Hartman involving First Amendment retaliatory prosecutions. In Hartman the Court improperly inserted pro-law enforcement policy into section 1983 statutory interpretation in the course of setting out the proper elements of a section 1983 First Amendment retaliatory prosecution claim. This set the stage for Nieves. As I have argued previously–see the post cited above–to the extent that such policy considerations are relevant, they belong on the qualified immunity side of section 1983 statutory interpretation (indeed, the Court has used qualified immunity with a vengeance to favor law enforcement). In this regard, note that the Court in Nieves explicitly cited Harlow v. Fitzgerald, where the Court eliminated the subjective part of the then-existing qualified immunity test in order to protect defendants from what it considered non-meritorious claims.

The Court in Nieves compounded its mistake by extending Hartman (where the presumption of prosecutorial regularity was the driving consideration) to Nieves and First Amendment retaliatory arrest claims, where this presumption simply does not play any role.

3. The “narrow qualification” somewhat helps plaintiffs bringing section 1983 First Amendment retaliatory arrest claims. But the evidentiary burden of proof on plaintiffs to show similarly situated individuals who did not engage in protected speech and were not arrested, and plaintiffs’ ability thereby to end-run a finding of probable cause, is extremely high. Compare the onerous burden on section 1983 plaintiffs bringing claims of class-of-one equal protection violations.

4. Here are the results in real world terms:

(1) Going forward, the law regarding First Amendment retaliatory arrests is clearly established for qualified immunity purposes;

(2) Probable cause is a defense to section 1983 First Amendment retaliatory arrest claims unless the plaintiff can show that he or she was treated differently from others similarly situated because of his or her speech.

(3) Probable cause is not a defense to a section 1983 First Amendment retaliatory arrest claim brought against a municipality whose official policy or custom brought about the plaintiff’s allegedly unconstitutional arrest. This is the teaching of Lozman v. City of Riviera Beach, decided in 2018 and discussed in the post cited above as well as in Chapter 3 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018, West).