[author: Casmir M. Thornberry]*

Protest and political activism are deeply ingrained in American culture, boasting a storied history of citizens mobilizing to advocate for change and to challenge injustices. From the Boston Tea Party during the colonial era to the sit-ins of the civil rights movement, Americans tend to intertwine varying levels of civil disobedience with their advocacy. Oftentimes, this strategy is equally likely to lead to social change as it is to result in arrests. In April of 2024, college campuses erupted with pro-Palestinian encampments, reflecting the latest wave of activism. As of May 2, 2024, police had arrested more than 2,100 individuals related to these protests, sometimes deploying riot gear, tactical vehicles, and flash-bang devices to clear tent encampments and occupied buildings. Joshua Goodman, Protests Over Israeli-Palestinian Conflict Erupt on US Campuses, AP NEWS (May 18, 2024), https://apnews.com/article/israel-palestinian-campus-student-protests-war-ec3f62c51c08599f8fcecd99f7cf9e33.

The decision by some university administrations to involve local police in dispersing these encampments, often resulting in arrests, has led to allegations of First Amendment retaliation. Sam Ribakoff, University Response to Student Protests Prompts Flurry of Lawsuits, Courthouse News (May 13, 2024), https://www.courthousenews.com/university-response-to-student-protests-prompts-flurry-of-lawsuits/. These allegations highlight important legal issues about the connection between free speech and law enforcement authority. Specifically, they raise questions about potential retaliatory motives in arrests made during and after protests - even when the plaintiff admits that there was probable cause for their arrest. This article reviews the genesis of First Amendment retaliation actions, how circuits have applied the relatively new no-probable-cause rule and associated exception, and how Gonzalez v. Trevino, currently pending before the US Supreme Court, will affect the application of that exception.

The Genesis of First Amendment Retaliation Claims

The government may not punish a person or deprive them of a benefit on the basis of their constitutionally protected speech. See Perry v. Sindermann, 408 US 593, 597 (1972). Indeed, Judge Souter said it most clearly in the Opinion for the Court in Hartman v. Moore: “[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions … for speaking out.” 547 US 250, 256 (2006). The Supreme Court first formulated the test for retaliatory actions against First Amendment protected speech when it decided Mt. Healthy City School District Board of Education v. Doyle, 429 US 274 (1977). In Mt. Healthy, the plaintiff, a teacher, claimed that he was terminated by the school board in retaliation for sending a copy of the board’s memo regarding dress code for teachers to a radio station and for making obscene gestures to students. Ultimately, the Court developed a burden-shifting framework designed to safeguard constitutional rights while avoiding undesirable consequences. Id. at 287. Under this framework, to successfully demonstrate First Amendment retaliation pursuant to 42 USC § 1983, the plaintiff bears the burden of first demonstrating that unconstitutional animus was a motivating factor for an adverse action. Id. The burden then shifts to the defendant to demonstrate, by a preponderance of the evidence, that it would have taken the same action even in the absence of the protected activity. Id. In essence, the Court demanded a causal link where, without the retaliatory motive, the adverse action would not have occurred: a "but-for" connection between the alleged injury and the government official's motivation.

Notably, Mt. Healthy involved First Amendment retaliation in the employment context. And while in workplace discrimination suits the application of the burden-shifting framework may be relatively straightforward, its application in other contexts has proven more nuanced – including in claims against law enforcement. Especially when evaluating claims of retaliatory prosecution or arrest, after Mt. Healthy, courts were faced with the task of balancing the protected speech rights of individuals against the legitimate enforcement objectives of police officers. Eventually, this led to a circuit split over whether plaintiffs needed to demonstrate a lack of probable cause for retaliatory prosecution or arrest claims. In Hartman v. Moore, 547 US 250 (2006), the Supreme Court affirmed the addition of this threshold burden to retaliatory prosecution actions but left the probable cause requirement’s application to retaliatory arrest unanswered. In its analysis, the Court underscored the "the need to prove a chain of causation from animus to injury." Id. at 259. By emphasizing this causal link, the Court highlighted the critical role of causation in First Amendment retaliation claims and the complexity it presents in the law enforcement context. The simplest solution to solidify that role? In order to state a retaliatory prosecution claim under the First Amendment, a plaintiff must plead and prove the absence of probable cause. Id. at 250.

Because a plaintiff may not sue the absolutely immune prosecutor in a retaliatory prosecution action, they instead sue police officers or other officials for unlawfully instigating the prosecution. The presence or absence of probable cause in these cases serves as a key piece of circumstantial evidence, reinforcing or undermining claims of retaliation. The Court reasoned that the issue of probable cause was so likely to be raised by some party at some point that treating it as … an element will address the issue of causation without adding to time or expense.” Id. at 265.

Following the Court’s decision to confine it’s ruling in Hartman to retaliatory prosecution claims, the “question that [had] divided the federal courts for decades,” Lozman v. City of Riviera Beach, 585 US 87, 102 (2018), remained unanswered and the circuits – in typical fashion – continued to split on whether the existence of probable cause defeats a retaliatory arrest claim. Enter Arctic Man.

The No-Probable-Cause Rule: Understanding Nieves v. Bartlett

In Nieves v. Bartlett, 139 S. Ct. 1715 (2019), the case involved an incident at the Arctic Man winter sports festival held in the remote Hoodoo Mountains of Alaska. The plaintiff, Russell Bartlett, was arrested by police officers Luis Nieves and Bryce Weight. Bartlett alleged that the officers arrested him in retaliation for his speech, specifically his decision not to speak with them, in violation of the First Amendment. The officers claimed that Bartlett interfered with their investigation and was intoxicated, providing probable cause for the arrest. The sole question presented before the Supreme Court was whether, as in Hartman, probable cause defeats a First Amendment retaliatory arrest claim under § 1983. The Court held that, generally, it does. Id. at 1723. But it then provided a slim caveat: a plaintiff can prevail on a § 1983 retaliatory arrest claim, despite the existence of probable cause, by presenting “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. at 1727.

The Court reasoned that claims for retaliatory prosecution and retaliatory arrest maintain a “close relationship” and, just as in Hartman, the causal inquiry involved in retaliatory arrest cases are complex. Id. at 1724. This complexity arises because protected speech can be a legitimate factor in an officer's decision to arrest, officers must often make "split-second judgments" during arrests, and virtually all retaliatory arrest cases contain available evidence regarding probable cause. Id. The Nieves Court went on, however, to depart from its prior succinct dismissal in Hartman of the defendants’ fear of excessive litigation resulting from applying the Mt. Healthy standard alone. Writing for the Court, Chief Justice Roberts stressed that policing certain events, like unruly protests, could pose overwhelming litigation risks, permitting “[a]ny inartful turn of phrase or perceived slight during a legitimate arrest [to] land an officer in years of litigation.” Id. The Court stressed that an approach based purely on the subjective intent of the officer would be “easy to allege and hard to disprove.” Id. (citing Crawford-El v. Britton, 523 US 574, 585 (1998)). Thus, necessitating an objective demonstration of the absence of probable cause as an essential element of the plaintiff’s pleading.

In the final section of the Court’s opinion, the majority carved out an exception to the no-probable-cause requirement in order to prevent “some police officers [from exploiting] the arrest power as a means of suppressing speech.” Id. at 1727. While this addition led to Justice Thomas’s partial dissent, it may have been necessary to ultimately cobble-together a majority. Indeed, during oral argument in Nieves, multiple justices expressed varying concern with such an “unyielding requirement.” Justice Kagan asked counsel for Nieves and Weight a hypothetical focused on when an officer decides to arrest a jaywalker, who was also wearing a Black Lives Matter t-shirt or Make America Great Again cap: “And the -- the point is that there are so many laws that people can break that police officers generally look the other way, but, you know, you're saying something that the officer doesn't much like, so he doesn't look the other way.” Transcript of Oral Argument at 11-12, Nieves v. Bartlett, 139 S. Ct. 1715 (2019). In fact, jaywalking was the exact example used by the Court in outlining “criminal” activity that rarely results in arrests, thus rendering probable cause ineffective in proving or disproving the causal connection between animus and injury. Nieves, at 1727.

Later, Justice Alito essentially proposes a nearly identical version of the final exception: “So what if we were to say that a party making such a claim has to plead and ultimately prove that there is a comparator who engaged in similar conduct or people who were similar and they engaged in the same conduct, but they were not arrested?” Transcript of Oral Argument, supra, at 28.

In short, to satisfy the causation element, a plaintiff must present objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Id. at 1727. Or to put it more simply: a plaintiff must present objective evidence – evidence based on verifiable facts, rather than feeling or opinion - that she was arrested while others in similar situations who weren't engaged in the same protected speech were not. There is no doubt that, by creating this exception and acknowledging the potential for abuse of arrest powers to suppress speech, the Court recognized the need for a tailored approach that sufficiently addresses the causal complexities leading to even the most endemic of crimes. But, while the Court's final enunciation of the rule seems succinct and clear on its face, it provides no guidance or example from which to instruct lower courts on how to apply the new exception.

Applying Nieves

To the benefit of government practice defense attorneys, the no-probable-cause requirement in Nieves significantly narrows the avenues for § 1983 plaintiffs to prevail in such cases. Ryan Hor, Choose Your Words Carefully: Reimagining Retaliatory Arrest After Nieves v. Bartlett, 90 Fordham L. Rev. 873 (2021). Indeed, a plaintiff’s prospects of success in a § 1983 claim rest largely on whether there was an absence of probable cause, meaning that the probable cause analysis is crucial to retaliatory arrest claims. Id. In making that determination, Nieves emphasizes an objective standard rather than investigating an officer’s subjective intent. Nieves at 1725. This means that courts evaluate whether there was probable cause for the arrest based on objective facts rather than delving into the officer’s motivations. This approach simplifies the defense against retaliation claims at an early stage, making it easier for officers to demonstrate the legality of their actions without having to engage in the difficult task of proving their personal intentions.

However, as Justice Sotomayor noted in her Nieves dissent, in applying the new standard, and the associated exception, it is unclear what the Court meant by “objective evidence,” “otherwise similarly situated,” and “the same sort of protected speech.” Id. at 1741(Sotomayor, J., dissenting at 1741). That ambiguity has led to varying applications of the exception to the no-probable-cause requirement throughout multiple circuits.

The Seventh Circuit in Lund v. City of Rockford, 956 F.3d 938 (7th Cir. 2020) adopted a broad view of the exception. In that case, a reporter was arrested after discovering a police-run prostitution sting operation in the course of his news-gathering activities. Relying on Justice Gorsuch’s concurrence in part and Justice Sotomayor’s dissent in Nieves, the Court claimed to apply the exception “commonsensically,” and found that the explicit language of the majority didn’t create a “rigid-rule.” Id. at 945. Instead, the court determined that Nieves merely requires a court to consider “whether the facts supply objective proof of retaliatory treatment” on a case-by-case basis. Id.

Alternatively, the Fifth Circuit in Gonzalez v. Trevino, 42 F.4th 487 (5th Cir. 2022), cert. granted, No. 22-1025, strictly construed the exception language in Nieves. Gonzalez, a former Castle Hills, Texas city council member, placed a petition she had initiated, which criticized the city manager, into her binder after a city council meeting. Gonzalez claims she picked up the petition by accident. However, two months later, she was charged with violating a state law against tampering with government records – the charges were eventually dropped.

Subsequently, Gonzalez filed a federal civil rights lawsuit against the mayor, police chief, and the lawyer involved in her investigation, alleging that her arrest was in retaliation for her criticism of the city manager. In her complaint, she argued that she was the only person charged under the state law in the past decade for temporarily misplacing a document.

The Court held that Gonzalez could not benefit from the Nieves exception because she did not present objective evidence that other similarly situated individuals who did not engage in protected speech were not arrested. Id. at 492(citing Nieves at 1727). Specifically, the court explained, Gonzalez failed to offer evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted under Texas Penal Code § 37.10(a)(3). Id. Instead, she only offered evidence that nearly all prosecutions under this statute involved different conduct, requiring the court to infer that, because no one else had been prosecuted for similar conduct, her arrest must have been motivated by her speech. Id. The court rejected this line of thinking, instead reiterating the clear language of Nieves and requiring Gonzalez to show that someone else who had allegedly misplaced a government document but had not engaged in protected speech had not been arrested. Id.

After this decision, Gonzalez petitioned the Supreme Court for writ of certiorari. On October 13, 2023, the petition was granted. The case was argued on March 20, 2024. While the no-probable-cause requirement appears to be here to stay, this case could potentially reshape the contours of the probable-cause exception outlined in Nieves and will undoubtedly impact future litigation involving First Amendment retaliatory arrest claims.

Implications of the Upcoming Decision in Gonzalez v. Trevino

The questions presented by Gonzalez are (1) whether the probable-cause exception in Nieves can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether Nieves is limited to individual claims against arresting officers for split-second arrests. While it often proves to be a futile exercise to attempt to predict how the Supreme Court will rule, we can, at the very least, predict the most likely outcomes and their potential impact.

Beginning with the second question, the justices appeared to have little appetite for Gonzalez’s interpretation of the types of arrests to which their prior decision applied. As Justice Roberts put it: “I – I didn’t dissent in Nieves. And the Court’s opinion in that case went out of its way to emphasize the narrowness of the exception.” Transcript of Oral Argument at 10, Gonzelez v. Trevino, No. 22-1025. Instead, it seems more likely that the Court will address the first question more thoroughly and clarify the specific types of objective evidence that can be considered when a plaintiff invokes the probable cause exception.

The Court could reaffirm the Nieves standard with a narrow interpretation of the “objective evidence” language, which would reinforce the importance of probable cause in defending against retaliatory arrest claims. This outcome would likely curtail the number of viable retaliatory arrest lawsuits. Alternatively, the Court could follow the Seventh Circuit’s “commonsensical” approach and expand the original language of Nieves, analyzing the facts to determine objective evidence on a case-by-case basis.

Regardless of how the Supreme Court ultimately rules on the questions presented in Gonzalez, the requirement to demonstrate probable cause through objective evidence alone will continue to be an essential aspect of every defense strategy. As the interplay between civil disobedience and law enforcement’s response continues to evolve, this requirement serves as a critical bulwark against frivolous retaliatory arrest claims by ensuring that there is a factual basis for the arrest, independent of any alleged retaliatory motive. With this in mind, attorneys representing government officials in these suits should not underestimate the value of the extensive overlapping Fourth Amendment case law that often defers to officer’s judgments in determining probable cause.

* Adams Law, PLLC