Nahmod Law

On June 20, 2024, the Supreme Court handed down Gonzalez v. Trevino, 144 S. Ct. — (2024), reversing 42 F.4th 487 (5th Cir. 2022), a § 1983 First Amendment retaliatory arrest case involving the meaning of the “objective evidence” exception of 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 (ordinarily a complete defense to such a claim), 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.

In Gonzalez, 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 even though, after reviewing “the past decade’s misdemeanor and felony data for [the county, where the city was located] … her review had found that the Texas anti-tampering statute had never been used in the county ‘to criminally charge someone for trying to steal a nonbinding or expressive document. … [Her] search turned up 215 felony indictments, and she characterized the typical indictment as involving ‘accusations or either using or making fake government identification documents.'” 144 S. Ct. at –.

Judge Oldham dissented in the Fifth Circuit, 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.

The Supreme Court reversed and remanded in a per curiam opinion, ruling that the Fifth Circuit did not properly apply the principles of Nieves. It declared that the Fifth Circuit took “an overly cramped view of Nieves. … [T]he demand for virtually identical and indentifiable comparators goes too far.” The Court observed that the plaintiff’s evidence “that no one has ever been arrested to engaging in a certain kind of conduct … makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.”

The Court in Gonzaelz expressly declined to decide the plaintiff’s other contention that the Nieves no-probable cause rule applies only to First Amendment retaliatory arrest claims based on split-second arrests, and not based on deliberative arrests.

Justice Alito concurred in a lengthy opinion. 144 S. Ct. –. He agreed that strict comparator evidence was not required in this case. But he also went on to address and reject the plaintiff’s argument regarding the applicability of Nieves only to split-second arrests and not to deliberative ones. Justice Kavanaugh also concurred, noting that in his view this case was not about the Nieves exception but instead about probable cause as to mens rea rather than conduct-based comparisons. 144 S. Ct. –.

Justice Jackson, joined by Justice Sotomayor, concurring, pointed out that other types of objective evidence such as onerous arrest procedures, timing and false documentation may be used, in addition to surveys, to show impermissible First Amendment retaliation. Finally, Justice Thomas dissented, 144 S. Ct. –, arguing that the Court improperly expanded the Nieves exception. “I would adhere to the only rule grounded in history: Probable cause defeats a retaliatory arrest claim.”

Comments

Nieves, as noted earlier, 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 criticized 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, 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).

However, I confess error because I incorrectly predicted that the Court in Gonzalez would continue to make it quite difficult for §1983 plaintiffs in such cases to prevail. Specifically, I predicted that the Court would affirm the Fifth Circuit in Gonzalez and insist on the need for comparative evidence, just as the Court and the circuits do in class-of-one equal protection cases. Instead, to my surprise the Court soundly articulated the evidentiary flexibility necessary to allow § 1983 First Amendment retaliation plaintiffs to carry their difficult burden of overcoming the “narrow” Nieves exception.