Nahmod Law

First Amendment Retaliatory Prosecutions, Arrests and Civil Proceedings: The Eleventh Circuit Gets It Wrong

Does the Court’s retaliatory arrest-First Amendment decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), which ruled that such plaintiffs must allege and prove the absence of probable cause as an element of the claim (and that probable cause is therefore a defense to such claims), apply to retaliatory civil actions? Should it? The Eleventh Circuit answered these questions in the affirmative in a recent decision, Demartini v. Town of Gulf Stream, 2019 WL 6207952, *17  (11^th Cir. 2019). My view is that the Eleventh Circuit got it wrong.

In Demartini, the Eleventh Circuit considered the effect of Supreme Court retaliatory prosecution and retaliatory arrest decisions on section 1983 First Amendment claims based on a retaliatory civil lawsuit. The plaintiff alleged that a town (and a government contractor) retaliated against her by filing a RICO lawsuit because she associated with a non-profit corporation that had filed multiple public records lawsuits against the town. The Eleventh Circuit, after analyzing the Court’s decisions on retaliatory prosecutions and arrests, addressed the three circuit court decisions dealing with this issue, all of which had been decided long before Hartman v. Moore, 547 U.S. 250(2006), dealing with retaliatory prosecutions, and Nieves. It summarized these circuit decisions by noting that they all considered “whether the underlying civil lawsuit was frivolous before allowing a plaintiff to move forward on a §1983 First Amendment retaliation claim predicated on that civil lawsuit.”

The Eleventh Circuit then determined, first, that the town had probable cause to file its civil RICO lawsuit and, second, that the reasoning of Hartman and Nieves led to the conclusion that “the presence of probable cause will generally defeat a §1983 First Amendment retaliation claim based on a civil lawsuit as a matter of law.” For one thing, the causation landscape was similar to that in Hartman because an attorney filed the underlying civil lawsuit, thereby widening the causal gap between the town’s alleged animus and the plaintiff’s injury. For another, the existence of probable cause meant that the defendant had a legitimate interest in considering the plaintiff’s speech. This too rendered the “causation landscape more complex” as was the case in Nieves as well as in Hartman. Next, the Eleventh Circuit found that the “exceptions” mentioned by the Court in Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), and Nieves did not apply in this case. Finally, the court maintained that its decision here was consistent with common law doctrines, particularly those dealing with the tort of wrongful civil proceedings as to which the plaintiff has the burden of proving the absence of probable cause. Judge Rosenbaum concurred, 2019 WL 6207952, *26, disagreeing with the majority’s suggestion that there could be no exceptions to the no-probable-cause requirement in prior civil lawsuit situations. “]W]e must always at least evaluate the surrounding circumstances….”

Recall that the Supreme Court handed down Nieves in 2019. In an opinion by Chief Justice Roberts, the Court, resolving a split in the circuits, held that plaintiffs must allege and prove the absence of probable cause, and that the presence of probable cause is therefore a defense, where plaintiffs make section 1983 First Amendment claims 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.

Comments

I criticized Nieves in an earlier post. See https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/. There I argued that Nieves resulted 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 unfortunately set the stage for Nieves. To the extent that such policy considerations related to probable cause 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, I noted in the post 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.

I also argued that the Court in Nieves improperly extended Hartman (where the presumption of prosecutorial regularity and arguably complex causation issues were the driving considerations) to Nieves and First Amendment retaliatory arrest claims, where these considerations simply do not play much if any role. And now the Eleventh Circuit in Demartini has inappropriately extended the reasoning of Hartman and Nieves to a non-law-enforcement setting where there simply is no reason to balance the arguable misuse by plaintiffs of section 1983 First Amendment retaliatory claims against the needs of law enforcement. Moreover, the Eleventh Circuit’s contention that the causation landscape is “more complex” in part because an attorney filed the underlying civil lawsuit in Demartini is bizarre.

Finally, the Eleventh Circuit’s misguided approach has the potential to chill all valid section 1983 First Amendment claims brought against state and local governments and their officials for their retaliatory filing of lawsuits against plaintiffs who have the temerity to criticize government in lawsuits or otherwise. Since the inquiry is into a defendant’s improper motivation, the presence of probable cause in such cases should be irrelevant.