Nahmod Law

The Supreme Court recently granted certiorari in Gonzalez v. Trevino, 42 F.4th 487 (5th Cir. 2022), cert granted, 143 S. Ct. — (2023), where the plaintiff, a former city council member, alleged that the individual defendants arrested her for illegally removing a government record in retaliation for the exercise of her First Amendment rights. Because the plaintiff conceded there was probable cause for the arrest, and because the plaintiff (according to the Fifth Circuit) did not introduce comparative objective evidence showing that otherwise similarly situated persons who did not engage in the same protected speech were not arrested, the Fifth Circuit affirmed the dismissal of her § 1983 First Amendment retaliation claim. She did not fit within the exception set out in Nieves v. Bartlett, 139 S. Ct. 1715 (2019): under this “narrow” exception, a First Amendment retaliatory arrest plaintiff has the opportunity to show that, even where there was probable cause to arrest, this is not a defense if the plaintiff can show through objective evidence that he or she was arrested when other similarly situated persons who did not engage in protected speech were not.

The Fifth Circuit also observed that it did not adopt what it characterized as the “more lax reading of the exception” that the Seventh Circuit purportedly articulated in Lund v. City of Rockford, Illinois, 956 F.3d 938 (7th Cir. 2020).

Judge Oldham dissented, 42 F.4th at 495, arguing that the plaintiff stated a § 1983 First Amendment retaliation claim after Nieves even though there was probable cause: Nieves did not require comparative evidence (often difficult if not impossible to obtain), only objective evidence. Moreover, in Judge Oldham’s view, the more relevant precedent was Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), where the plaintiff sued a city who, through its policymakers, allegedly had him arrested in retaliation for the exercise of his First Amendment rights. In Lozman, the Court ruled that the plaintiff had met his burden because he alleged an official policy or custom, which made this a very different case from those involving retaliatory arrest claims against police officers individually. In this regard, it was significant for Judge Oldham in Gonzalez that plaintiff brought her claim against individual conspirators which, as in Lozman, was very different from the typical retaliatory arrest claim.

Comments

Recall that Nieves held that a §1983 plaintiff alleging that he or she was arrested because of the exercise of First Amendment rights has the burden of pleading and proving the absence of probable cause for the arrest. I criticize Nieves in an earlier post for mangling §1983 and the First Amendment in order to protect law enforcement. 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/

I also, at greater length, severely criticize Nieves and its reasoning at §3:13 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/ Westlaw).

But Nieves is the law, so the Supreme Court in Gonzalez is now tasked with the need to determine what the Nieves Court meant by its “narrow” exception: what evidence is required for a §1983 First Amendment retaliatory arrest plaintiff to overcome the existence of probable cause to arrest?

My prediction is that the Court will continue to make it quite difficult for §1983 plaintiffs in such cases to prevail. It will affirm the Fifth Circuit in Gonzalez and insist on the need for comparative evidence, just as it and the circuits do in class-of-one equal protection cases. See generally §3:85 of my Treatise for discussion of Village of Willowbrook v. Olech, 120 S. Ct. 1073 (2000) and for collected circuit court decisions.