Amicus Curiae Brief — Luis A. Nieves, et al., Petitioners v. Russell P. Bartlett

Supreme Court briefAug 27, 2018

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No. 17-1174

IN THE

Supreme Court of the United States

————

LUIS A. NIEVES, et al.,

Petitioners,

RUSSELL P. BARTLETT,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF THE DISTRICT OF COLUMBIA

AND THE STATES OF COLORADO, IDAHO,

INDIANA, KANSAS, LOUISIANA, MAINE,

MISSISSIPPI, MONTANA, NEW MEXICO,

OKLAHOMA, PENNSYLVANIA, RHODE ISLAND,

SOUTH CAROLINA, UTAH, AND WYOMING AS

AMICI CURIAE IN SUPPORT OF PETITIONER

————

KARL A. RACINE

Attorney General for the

District of Columbia

LOREN L. ALIKHAN

Solicitor General

Counsel of Record

CAROLINE S. VAN ZILE

Deputy Solicitor General

CARL J. SCHIFFERLE

Senior Assistant Attorney General

D.C. OFFICE OF THE

ATTORNEY GENERAL

441 4th Street, NW

Suite 630 South

Washington, D.C. 20001

(202) 727-6287

loren.alikhan@dc.gov

Counsel for Amicus Curiae

District of Columbia

(Additional Counsel Listed On Signature Page)

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTION PRESENTED

In Hartman v. Moore, 547 U.S. 250 (2006), this Court

held that probable cause defeats a First Amendment

retaliatory-prosecution claim under 42 U.S.C. § 1983

as a matter of law. Does probable cause likewise

defeat a First Amendment retaliatory-arrest claim

under Section 1983?

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

INTEREST OF AMICI CURIAE ........................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

The Ninth Circuit’s Rule Inhibits Effective Policing By Discouraging Justified

Arrests, Heightening The Peril Of Arrest

Situations, And Limiting The Ability Of

The Police To Respond To Community

Problems....................................................

A. Under the Ninth Circuit’s rule, nearly

all arrestees could sue—and likely

force a trial—by questioning the

officers’ subjective motivations ...........

1. Retaliatory arrest could easily be

claimed in most instances given

the prevalence of suspects’ protected speech ...................................

2. Adopting the Ninth Circuit’s rule

would effectively transform the

standard for arresting officers’

liability,

including

qualified

immunity, from an objective test

into a subjective one .......................

B. A subjective test would discourage

officers from enforcing the law and

heighten the volatility of arrest

situations .............................................

TABLE OF CONTENTS—Continued

Page

C. Reliance on other factors, such as

whether a law is commonly enforced,

is not an adequate substitute for

proving a lack of probable cause .........

States And Localities Have Effective

Mechanisms For Ensuring That Officers

Do Not Make Retaliatory Arrests ............

A. Administrative review of police

conduct provides an effective alternative for addressing allegations of

retaliation through courts ...................

B. Additional protections exist through

limitations on the arrest power and

through policies on arrest alternatives ......................................................

CONCLUSION ....................................................

II.

TABLE OF AUTHORITIES

Cases

Page(s)

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) ........................ 12, 23, 24-25

Brown v. Entm’t Merchants Ass’n,

564 U.S. 786 (2011) ...................................

Chicago v. Morales,

527 U.S. 41 (1999) .....................................

Crawford-El v. Britton,

523 U.S. 574 (1998) .............................. 10-11, 12

Cty. of Riverside v. McLaughlin,

500 U.S. 44 (1991) .....................................

Dahl v. Holley,

312 F.3d 1228 (11th Cir. 2002) .................

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) .................................

Dukore v. District of Columbia,

799 F.3d 1137 (D.C. Cir. 2015) .................

Florence v. Bd. of Chosen Freeholders,

566 U.S. 318 (2012) ................................... 12, 14

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ...................................... 10, 11

Hartman v. Moore,

547 U.S. 250 (2006) ...................................

Holguin v. City of San Diego,

135 F. Supp. 3d 1151 (S.D. Cal. 2015) .....

Horton v. California,

496 U.S. 128 (1990) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Houston v. Hill,

482 U.S. 451 (1987) ...................................

Joyce v. Crowder,

480 F. App’x 954 (11th Cir. 2012) ............

Keenan v. Tejeda,

290 F.3d 252 (5th Cir. 2002) .....................

Kentucky v. King,

563 U.S. 452 (2011) ...................................

Logsdon v. Hains,

492 F.3d 334 (6th Cir. 2007) .....................

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) ............................... 12-13

McCabe v. Parker,

608 F.3d 1068 (8th Cir. 2010) ...................

Mozzochi v. Borden,

959 F.2d 1174 (2d Cir. 1992) ....................

Pegg v. Herrnberger,

845 F.3d 112 (4th Cir. 2017) .....................

Reichle v. Howards,

566 U.S. 658 (2012) ...................................

Siegert v. Gilley,

500 U.S. 226 (1991) ................................... 9-10

State v. Baccala,

163 A.3d 1 (Conn. 2017)............................

United States v. Alvarez,

567 U.S. 709 (2012) ...................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. O’Brien,

391 U.S. 367 (1968) ...................................

Virginia v. Moore,

553 U.S. 164 (2008) ............................. 11, 23, 24

Wayte v. United States,

470 U.S. 598 (1985) ...................................

Statutes, Regulations, and Rules

42 U.S.C. § 1983 ...........................................

Cal. Penal Code § 832.5(a) ...........................

Cal. Penal Code § 837.2(e)(1) .......................

Conn. Gen. Stat. § 7-294bb ..........................

D.C. Code § 5-1104 .......................................

D.C. Code § 5-1105 .......................................

D.C. Code § 5-1111(c) ...................................

D.C. Code § 5-1112 .......................................

D.C. Mun. Regs. tit. 6A, § 2104.1.................

D.C. Mun. Regs. tit. 6A, § 2199.1.................

L.A., Cal., Charter vol. I, § 571(b)(4) ............

L.A., Cal., Charter vol. I, § 573 .....................

Me. Rev. Stat. tit. 25, § 2803-B ....................

Md. Code Ann., Pub. Safety § 3-519 ............

N.J. Stat. § 40A:14-181 ................................

N.Y.C., N.Y., Rules tit. 38A, § 1-02(a) .........

N.Y.C., N.Y., Rules tit. 38A, § 1-23(d) .........

viii

TABLE OF AUTHORITIES—Continued

Page(s)

N.Y.C., N.Y., Rules tit. 38A, § 1-46(f) ..........

R.I. Gen. Laws § 21.2-8 ................................

Va. Code § 19.2-74 ........................................

Va. Code § 46.2-936 ......................................

Vt. Stat. Ann. tit. 20, § 2402 ........................

Other Authorities

Brief for Petitioner, Lozman v. City of

Riviera Beach, 138 S. Ct. 1945 (No. 1721), 2017 WL 6616986 (Dec. 22, 2017) ..... 13, 14

Alafair Burke, Policing, Protestors, and

Discretion, 40 Fordham Urb. L.J. 999

(2013) ......................................................... 16, 17

Cal. Dep’t of Justice, Arrests Reported from

2007-2016, https://openjustice.doj.ca.gov/

2016/arrests...............................................

Cal. Dep’t of Justice, Policy Governing

Citizen

Complaints

Against

Law

Enforcement (Jan. 2017) ...........................

Conn. Police Officer Standards & Training

Council, Mandatory Uniform Policy:

Complaints that Allege Misconduct by

Law Enforcement Agency Personnel (May

14, 2015) ....................................................

D.C. Office of Police Complaints, Annual

Report 2017 (Oct. 31, 2017) ...................... 20, 21

TABLE OF AUTHORITIES—Continued

Page(s)

Joseph De Angelis et al., Civilian Oversight

of Law Enforcement:

Assessing the

Evidence (2016) .........................................

Federal Bureau of Investigation, Crime in

the United States 2016, https://tinyurl.

com/yatbcyox .............................................

Final Report of the President’s Task Force

on 21st Century Policing (2015) ...............

Int’l Ass’n of Chiefs of Police, Building

Trust Between the Police and the Citizens

They Serve (2009) ......................................

Dan M. Kahan, Reciprocity, Collective

Action, and Community Policing, 90

Calif. L. Rev. 1513 (2002) .........................

L.A. Bd. of Police Comm’rs, Policies and

Authority Relative to the Inspector

General (approved Nov. 21, 2000), ...........

L.A. Police Dep’t, Office of the Inspector

General, http://www.lapdonline.org/police_

commission/content_basic_view/1076.........

Debra Livingston, Police Discretion and the

Quality of Life in Public Places: Courts,

Communities, and the New Policing, 97

Colum. L. Rev. 551 (1997) ........................ 16, 17

N.Y.C. Civilian Complaint Rev. Bd., Police

Discipline, https://www1.nyc.gov/site/ccr

b/prosecution/police-discipline.page .........

TABLE OF AUTHORITIES—Continued

Page(s)

N.Y.C. Civilian Complaint Rev. Bd., SemiAnnual Report, Jan.-June 2017 (Dec. 6,

2017) ..........................................................

Nat’l Conference of State Legislatures, Citation in Lieu of Arrest (updated Oct. 23,

2017), https://tinyurl.com/yd9wsf9d ... 23, 24, 25

Office of Community Oriented Policing

Servs., U.S. Dep’t of Justice, Community

Policing Defined (2014) ............................. 16, 17

Press Release, District Attorney Vance,

Commissioner Bratton, Mayor De Blasio

Announce New Structural Changes to

Criminal

Summonses

Issued

Manhattan (Mar. 1, 2016) ........................

The President’s Task Force on 21st Century

Policing Implementation Guide (2015) ....

Edward Sheehy et al., Greenville Police to

Issue Citations for Small Crimes Instead

of Arrests, WITN.com News (Oct. 9,

2017), https://tinyurl.com/y9ow3ll9..........

Tom R. Tyler & Jeffrey Fagan, Legitimacy

and Cooperation: Why Do People Help

Police Fight Crime in Their Communities?,

6 Ohio St. J. Crim. L. 231 (2008)..............

INTEREST OF AMICI CURIAE

The ability to enact, administer, and enforce criminal

laws is at the heart of a State’s sovereignty. Most

crimes fall under state rather than federal jurisdiction, making law enforcement a primary function for

state and local governments. In protecting the safety

of their residents, States have a vital interest in ensuring that law enforcement officers can arrest based on

probable cause. Where a State has authorized arrest

for a crime, and that arrest is based on probable cause,

arresting officers should not fear that they will be

subject to liability for a First Amendment retaliatoryarrest claim. State law enforcement would be impaired

if officers were deterred from making arrests by the

prospect of defending their subjective motivations

years later in a subsequent civil lawsuit.

The Amici States urge this Court to reverse the

court of appeals’ decision and, consistent with its

decision in Hartman v. Moore, 547 U.S. 250 (2006),

determine that the absence of probable cause is an

element of a First Amendment retaliatory-arrest claim.

SUMMARY OF ARGUMENT

As petitioner explains, it follows from this Court’s

precedent and common-law analogues that 42 U.S.C.

§ 1983 requires a plaintiff to show a lack of probable

cause to recover damages for an arrest allegedly in

violation of the First Amendment. The Amici States

write to highlight two additional points.

1. The Ninth Circuit’s contrary rule creates immense

practical difficulties for law enforcement. If a litigant

need not prove the absence of probable cause, virtually

every arrest would give rise to a potentially viable

retaliatory-arrest lawsuit for damages. It would be

easy for any arrestee to claim that he engaged in

protected speech contemporaneous with his arrest and

thus that the arrest was in retaliation for the speech.

Suspects routinely speak to police during encounters,

make other reported or overheard statements, and

display speech on their clothing, possessions, or vehicles.

Unless the speech itself constitutes a crime, virtually

all of it would be protected under the Ninth Circuit’s

rule.

It would similarly be easy for an arrestee to allege

that the arrest was motivated, in part, by the officer’s

disagreement with that speech. Much of an arrestee’s

speech might be critical and outspoken. Suspects

will naturally object to police inquiry, protest their

innocence, or communicate their displeasure in other

ways. This can turn hostile. On a daily basis, police

are required to withstand insults and verbal abuse.

Arrestees may also choose to break a law either as a

chosen means of protest or to state their objections to

the law itself, and may therefore argue that their

unlawful conduct was “expressive.” Additionally, a

suspect’s speech may be inculpatory. It may suggest

the requisite state of mind, a motive, or other facts

relevant to guilt. In all those situations, an arrestee

could readily claim that the speech was a motivating

factor in his arrest.

Because retaliation would be so easy to claim, a

retaliatory-arrest standard that lacks the absence of

probable cause as an element would discourage

officers from enforcing the law. Without the protection

of an objective, probable-cause test, arresting officers

would fear a suit that likely could not be decided

without burdensome discovery and a trial. They

would also correctly foresee a real threat of liability

inherent in a jury trying to reconstruct their subjective

motivations. Because police often must make arrest

decisions quickly and under difficult and tense

circumstances, the threat of such litigation would

cause them to hesitate to arrest, even when supported

by probable cause and the need to protect the public.

Adopting the Ninth Circuit’s rule would also make

police encounters more dangerous by encouraging

hostility toward officers as a tactic to avoid arrest.

It is unclear how, under the Ninth Circuit’s rule,

a court or jury could objectively evaluate whether

an arrestee’s speech or unlawful conduct caused

her arrest. Some have suggested focusing liability

on whether the officer, in his defense, can show that

police generally arrest for the relevant offense. But an

officer cannot realistically know, on the scene, whether

an offense is one that is or is not commonly enforced.

Any arrest, then, would be made under a cloud of

potential liability, at the officer’s own peril. Put simply,

there is no practical method for making a determination about the “frequency” of arrests for a particular

crime, even for purposes of the officer’s defense at trial.

Moreover, a test focusing on what some hypothetical,

average officer would have done in the same circumstance would impair the ability of police to address

localized community problems. Factoring liability on

whether police generally arrest for an offense would

gradually pressure police, as suits are litigated, to

categorize each offense as either one for which they

always arrest or never arrest. Among other problems,

this frustrates the application of community policing,

which encourages police to act with greater discretion,

continually using input from the community on what

problems warrant police resources and what responses

are effective.

2. The Ninth Circuit’s rule is also unnecessary to

protect First Amendment interests. States and localities can take effective remedial action in response to

citizen complaints of police misbehavior, including

alleged retaliation. Law enforcement agencies have

an important duty, as well as a direct interest, in

ensuring that citizen complaints against officers are

thoroughly investigated and appropriate disciplinary

action is taken. Such internal review is a vital component of managing a police department and maintaining

the public trust upon which law enforcement depends.

State and local governments can flexibly adopt solutions that promote law enforcement accountability

and effectiveness.

Additionally, many forms of external review of

citizen complaints have been implemented throughout

the nation. In many cities, citizen review boards with

subpoena powers directly investigate complaints of

officer misconduct and make findings and recommendations. Other jurisdictions have independent oversight

agencies that closely review a police department’s

handling of its own internal affairs investigations.

Though the mechanisms may vary, each locality can

select the administrative process that best addresses

its own situation. State governments have their own

oversight role, too, and can enact legislation and

policies to ensure that citizen complaints are appropriately handled.

States may also afford additional protections against

retaliatory arrest by limiting the arrest power and

establishing alternatives to arrest. States generally

prohibit warrantless arrests for misdemeanors unless

the crime is committed in the officer’s presence. States

have also circumscribed the power to arrest by

providing for release on citation or summons, in lieu of

a full custodial arrest, for certain crimes or under

certain circumstances. The policies of local governments and police departments may establish additional

standards and guidelines for citation in lieu of arrest,

thus limiting the potential of retaliatory arrests for

such crimes. First Amendment interests are important,

but the Ninth Circuit’s highly flawed and impractical

rule is not the only option for protecting them.

ARGUMENT

I. The Ninth Circuit’s Rule Inhibits Effective

Policing By Discouraging Justified Arrests,

Heightening The Peril Of Arrest Situations,

And Limiting The Ability Of The Police To

Respond To Community Problems.

As the Second, Fourth, Fifth, Eighth, and Eleventh

Circuits have correctly recognized, the existence of

probable cause defeats a claim for retaliatory arrest.

Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992)

(if “probable cause to arrest exist[s] independent of the

defendants’ motive,” a retaliatory-arrest claim fails);

Pegg v. Herrnberger, 845 F.3d 112, 119 (4th Cir. 2017),

(where officer had probable cause to arrest plaintiff,

“his arrest was not retaliatory”); Keenan v. Tejeda, 290

F.3d 252, 261-62 (5th Cir. 2002) (the “objectives of law

enforcement take primacy over the citizen’s right to

avoid retaliation”); McCabe v. Parker, 608 F.3d 1068,

1075 (8th Cir. 2010) (“Lack of probable cause is a

necessary element” of a First Amendment retaliatoryarrest claim); Dahl v. Holley, 312 F.3d 1228, 1236

(11th Cir. 2002) (“the existence of probable cause to

arrest” bars a First Amendment retaliation claim).

That conclusion makes sense as a legal matter, see Pet.

Br. 16-41, but it also furthers important public safety

goals. If officers find probable cause to arrest under

the totality of the circumstances, they should be

entitled to make that arrest—and thereby protect

public safety—without fear that they will later be

subject to a suit challenging their subjective motivations. The threat of such suits would not only make

officers’ already difficult and dangerous jobs even

more harrowing, but would also hinder law enforcement agencies from taking custody of dangerous

offenders and implementing effective community policing.

A. Under the Ninth Circuit’s rule, nearly

all arrestees could sue—and likely force

a trial—by questioning the officers’

subjective motivations.

1. Retaliatory arrest could easily be claimed in

most instances given the prevalence of

suspects’ protected speech.

Under the Ninth Circuit’s rule, an arrestee may

subject his arresting officers to a burdensome lawsuit

simply by alleging a retaliatory motive. Such claims

will be easy to advance because an arrestee will almost

always be able to identify protected speech contemporaneous with his arrest. There is a “vast realm” of

protected speech, and content-based restrictions on

protected speech are limited to just a few traditional

categories (such as fraud, fighting words, and true

threats). United States v. Alvarez, 567 U.S. 709, 71718 (2012) (plurality op.); see also Brown v. Entm’t

Merchants Ass’n, 564 U.S. 786, 790-91 (2011) (outlining the exceptions “in a few limited areas” to the rule

that speech is generally protected). As a result, in

virtually every case where an arrestee speaks at all,

she will have engaged in protected speech.

Suspects rarely remain completely silent during a

police encounter. Those who have broken the law are

not happy to be apprehended and often speak critically

of police. Hoping to frustrate the police investigation

and ultimately avoid arrest, they routinely protest

their innocence to officers or criticize the propriety of

police action. See, e.g., Holguin v. City of San Diego,

135 F. Supp. 3d 1151, 1162-63 (S.D. Cal. 2015)

(plaintiff, arrested for being intoxicated and uncooperative, alleged that his arrest was in retaliation for

asking police to “take it easy”). They may also engage

in speech that is highly offensive but nevertheless

protected, such as by hurling insults and profanities

at police officers. Indeed, this Court has suggested

that additional First Amendment protection for such

speech may be warranted in part because police officers are trained not to respond to such abuse. Houston

v. Hill, 482 U.S. 451, 461-62 (1987). Most courts agree

and hold police to a higher standard. See, e.g., State v.

Baccala, 163 A.3d 1, 9 (Conn. 2017) (citing cases).

Perversely, if the Court were to adopt the Ninth

Circuit’s rule, a suspect’s insults and profanities may

well suggest—especially to lay jurors—that officers

responded in a retaliatory manner. After all, such

words are designed to provoke, and if spoken to an

average citizen would ordinarily prompt an angry

and perhaps violent response. Even a suspect’s more

tempered criticism or disapproval of the officers could

easily be alleged to have motivated an arrest.

An arrestee could also readily allege retaliatory

motive when his lawbreaking is directly tied to

purported expressive conduct or protest. Persons may

break a law to express disagreement with the law

itself or related governmental policy. See Wayte v.

United States, 470 U.S. 598, 600-01 & n.2 (1985)

(letters explaining refusal to register with Selective

Service). Or they may violate the law simply to

express themselves in a manner of their own choosing.

For example, protestors may encamp unlawfully on

public space, using such continued occupation to expound

their message. See Dukore v. District of Columbia, 799

F.3d 1137, 1138-39 (D.C. Cir. 2015). Protestors may

also trespass on the private property of entities whose

practices or views they oppose. See, e.g., Logsdon v.

Hains, 492 F.3d 334, 337-38 (6th Cir. 2007) (abortion

protestors); Joyce v. Crowder, 480 F. App’x 954, 955

(11th Cir. 2012) (environmental activists). Because

of the close connection between the offense and the

expression of protest, an arrestee could well claim

retaliation in these circumstances—thereby deterring

officers from making legitimate and often necessary

arrests for trespassing or disorderly conduct within

the encampment. See, e.g., Dukore, 799 F.3d at 1139.

Even speech that provides evidence of criminal

activity may be protected. A suspect’s own speech

might place him at the scene of the crime, reveal a

motive, or indicate that he acted with the requisite

intent. But under the Ninth Circuit’s standard, an

officer who relies on such inculpatory statements

would then become subject to a retaliatory-arrest

claim. After all, the content of the arrestee’s speech

would admittedly be a motivating factor in such an

arrest.

This would apply even in the extreme

circumstance where a suspect is confessing to a crime:

For example, if a person is arrested after stating that

he has burned his draft card because of his beliefs,

then he could claim that his arrest was retaliatory.

E.g., United States v. O’Brien, 391 U.S. 367 (1968).

To avoid liability in such a circumstance, the officer

would have to show something more than probable

cause—such as, for example, that police generally

make arrests when they observe evidence of the alleged

crime. It is not clear, however, how an arresting officer

could possibly prove this, and even if he could, there is

no reason why an officer who arrests a suspect based

on the suspect’s own inculpatory statements should be

forced to litigate in that circumstance.

The risk of a subsequent suit for retaliatory arrest

exists even in the rare case where the suspect says

nothing to the officer directly. Officers often overhear,

or receive reports of, statements made by the suspect.

And even where the suspect himself is entirely silent,

he could later claim that something as simple as the

bumper sticker on his car or a slogan on his t-shirt was

protected speech giving rise to the arrest.

2. Adopting the Ninth Circuit’s rule would

effectively transform the standard for arresting officers’ liability, including qualified

immunity, from an objective test into a

subjective one.

Because a showing of protected speech poses little

obstacle, a test for retaliatory-arrest claims that fails

to incorporate probable cause as an element would

turn on the subjective motivations of the arresting

officers. It would thereby supplant the objective standards that this Court has firmly established for

assessing the constitutionality of an arrest. “[T]his

Court has long taken the view that ‘evenhanded law

enforcement is best achieved by the application of

objective standards of conduct, rather than standards

that depend upon the subjective state of mind of the

officer.’” Kentucky v. King, 563 U.S. 452, 464 (2011)

(quoting Horton v. California, 496 U.S. 128, 138 (1990)).

Qualified immunity would provide arresting officers

little protection if it too turned on their subjective

motivations. Qualified immunity is designed “to spare

a defendant not only unwarranted liability, but

unwarranted demands customarily imposed upon

those defending a long drawn out lawsuit.” Siegert

v. Gilley, 500 U.S. 226, 232 (1991). As this Court

has established, an objective standard for assessing

officers’ actions is needed to ensure that burdensome

lawsuits do not occupy an unwarranted amount of

law enforcement’s time and attention. See Harlow v.

Fitzgerald, 457 U.S. 800, 815-19 (1982). That is because

“[j]udicial inquiry into subjective motivation . . . may

entail broad-ranging discovery and the deposing of

numerous persons, including an official’s professional

colleagues.” Id. at 817. After extensive discovery,

arresting officers would then likely have to undergo a

trial, since “questions of subjective intent so rarely can

be decided by summary judgment.” Id. at 816. As the

Harlow Court concluded, basing qualified immunity

on an officer’s subjective motivations “has proved

incompatible with [this Court’s] admonition . . . that

insubstantial claims should not proceed to trial.” Id.

at 815-16.

Under the Ninth Circuit’s rule, an officer with

retaliatory motive would not be entitled to qualified

immunity even if the arrest were objectively reasonable, i.e., supported by probable cause. To be sure, if

it were unclear whether the speech was protected,

qualified immunity would apply. Otherwise, though,

the retaliatory motive establishing a First Amendment

violation might defeat qualified immunity, as plaintiffs

will no doubt argue, and thus qualified immunity

would provide officers no added protection.

If needed, this Court could (and should) hold that,

to the contrary, the existence of probable cause, or

arguable probable cause, entitles an officer to qualified

immunity on a First Amendment retaliatory-arrest

claim. See Crawford-El v. Britton, 523 U.S. 574, 612

(1998) (Scalia, J., dissenting). Such a holding would

preserve that doctrine’s protections for official acts

that are objectively reasonable, whatever the subjective intent. But, especially without such an extension

of qualified immunity, the Ninth Circuit’s rule

would institute a profound and unwarranted shift in

assessing officers’ liability for arrests. It would replace

well-established objective standards with an openended inquiry into an officer’s subjective motivations.

B. A subjective test would discourage officers

from enforcing the law and heighten the

volatility of arrest situations.

The resulting litigation over officers’ subjective

motivations for arrests would impose significant societal costs. These would be beyond just the “general

costs of subjecting government officials to the risks of

trial,” such as the “distraction of officials from their

governmental duties.” Harlow, 457 U.S. at 816. First,

adopting the Ninth Circuit’s standard would have a

particularly adverse effect on the ability of states to

protect their citizens from crime. “States have a

strong interest in protecting public safety by taking

into custody those persons who are reasonably suspected

of having engaged in criminal activity, even where

there has been no opportunity for a prior judicial

determination of probable cause.” Cty. of Riverside v.

McLaughlin, 500 U.S. 44, 52 (1991). Among its other

purposes, a custodial arrest “ensures that a suspect

appears to answer charges and does not continue a

crime.” Virginia v. Moore, 553 U.S. 164, 173 (2008).

The threat of damages claims based on an officer’s

subjective motivations would dissuade officers from

making legitimate arrests. Officers who acted without

retaliatory animus would still have reason to fear not

only the burdens of litigation, but also the potential

liability that could result. They would be aware that

a retaliatory motive is “easy to allege and hard to

disprove.” Crawford-El, 523 U.S. at 584-85. They also

often must act “on the spur (and in the heat) of the

moment.” Atwater v. City of Lago Vista, 532 U.S. 318,

347 (2001). Yet an officer would undoubtedly hesitate

to act decisively knowing that a court or jury would

later dissect the constitutionality of his actions based

on its own reconstructed view of his thought processes.

Officers would thus be incentivized to forgo arrest

even when such action is appropriate to secure public

safety. See Florence v. Bd. of Chosen Freeholders, 566

U.S. 318, 337-38 (2012) (explaining rejection of

proposed rule for warrantless arrests because “the risk

of violating the Constitution would have discouraged

[officers] from arresting criminals in any questionable

circumstances”).

Additionally, police encounters with suspects would

become more perilous. Criminals would learn that

confrontational speech could be particularly effective

in forestalling arrest because of its added value for a

potential lawsuit and the deterrent effect that would

have on all but the most resolute officers. Indeed, from

the lawbreaker’s perspective, the more confrontational

and incendiary the speech, the better. Officers

meanwhile might reasonably perceive that the suspect’s

hostility could turn violent. Potential arrest situations

are already tense, uncertain, and subject to sudden

escalation. Adding a further element of provocation

into such a fraught situation would increase the risk

of harm to all involved.

As this Court acknowledged in Lozman v. City of

Riviera Beach, 138 S. Ct. 1945 (2018), “[i]n deciding

whether to arrest, police officers often make split-second

judgments.” Id. at 1953. And “[t]he content of the

suspect’s speech might be a consideration in

circumstances where the officer must decide whether

the suspect is ready to cooperate, or, on the other hand,

whether he may present a continuing threat to

interests that the law must protect.” Id. (citing

District of Columbia v. Wesby, 138 S. Ct. 577, 587

(2018) (“suspect’s untruthful and evasive answers to

police questioning could support probable cause”)).

The “complexity of proving (or disproving) causation in

these cases creates a risk that the courts will be

flooded with dubious retaliatory arrest suits,” absent

the requirement that a plaintiff allege a lack of

probable cause. Id. And the prospect of a flood of suits

will no doubt have a strong deterrent effect on officers

navigating already-fraught pre-arrest encounters with

dangerous suspects. For those reasons, a bright-line

rule incorporating lack of probable cause as an

element of a retaliatory-arrest claim is necessary.

C. Reliance on other factors, such as whether

a law is commonly enforced, is not an

adequate substitute for proving a lack of

probable cause.

In the past, plaintiffs have suggested that the causal

role of retaliatory animus could be proven by the frequency or infrequency with which suspects are arrested

for a given offense, rather than by the presence or

absence of probable cause. See Brief for Petitioner at

35-36, Lozman, 138 S. Ct. 1945 (No. 17-21), 2017 WL

6616986 (Dec. 22, 2017) (“Lozman Br.”). But such a

standard would only compound the problem. To

protect themselves from suit, officers would need to

know whether the offense for which they have probable cause is commonly enforced. This would place

arresting officers in an impossible position. Whether

a law is generally enforced is not a test that an officer

can apply on the scene, especially in the brief time

available to decide whether to arrest. See Florence,

566 U.S. at 338 (“Officers who interact with those

suspected of violating the law have an essential

interest in readily administrable rules.” (internal

quotation marks omitted)).

Under that standard, some plaintiffs have opined

that where a “serious crime” has been committed there

will be no liability, since presumably police arrest for

such crimes virtually every time they can. Lozman Br.

35-36. But this does little, if anything, to ease an

officer’s predicament. Only an estimated 5% of arrests

are for violent felonies (murder and nonnegligent

manslaughter, rape, robbery, and aggravated assault).

Federal Bureau of Investigation, Crime in the United

States 2016, https://tinyurl.com/yatbcyox (last visited

Aug. 24, 2018). Most arrests are presumably for misdemeanors. See id.; Cal. Dep’t of Justice, Arrests Reported

from 2007-2016, https://openjustice.doj.ca.gov/2016/ar

rests (reporting twice as many misdemeanor arrests

as felony arrests in California).

Not only would a rule based on the frequency of

arrests for particular crimes be impossible for an

officer to apply in the field, it would be very difficult

for him to meet in his own defense at trial. Identifying

a workable, meaningful measure of how commonly a

law is enforced through arrest is a tall order. The

requisite statistics for any such measure may not be

generally available. Beyond those insurmountable

obstacles, a stream of other complications would arise

in trying to measure whether police generally arrest

for an offense. Is the relevant geographic pool

nationwide, or by state, police department, or police

district? How narrowly or broadly should the relevant

offense be categorized? How is the measure affected

when multiple or overlapping offenses are involved?

The list goes on.1

What is more, a standard that looks to whether a

law is generally enforced to determine liability, rather

than looking to probable cause, would inhibit the

flexibility of police to address particular community

problems as they arise. It would instead encourage

police to divide criminal offenses into two categories:

those for which they should always arrest and those

for which they should never arrest. After all, to the

extent that a law is enforced at every possible

opportunity through an arrest, then officers would

have a strong, if not airtight, defense to a retaliatoryarrest claim. Conversely, police would be inclined to

forgo an arrest if the criminal law that has been

violated will not, or cannot, be regularly enforced at all

other times and locations. Fearing a retaliatory-arrest

claim, officers would be especially hesitant to make

legitimate arrests for many types of offenses that

might not be considered “commonly enforced” or

clearly “serious.”

Among other problems, this inflexible, “all or

nothing” approach is antithetical to the concept of

community-oriented policing and other proactive

policing strategies. Such a rule would reinforce an

Similar problems arise with a standard based on whether the

officer must make a “singularly swift, on the spot, decision” when

“the safety of [a] person” or property “is in jeopardy.” Reichle v.

Howards, 566 U.S. 658, 671 (2012) (Ginsburg, J., concurring). In

a plethora of cases—ranging from trespass to the violation of

noise ordinances—such a standard would offer no protection to

officers. And plaintiffs would invariably allege factual disputes

about whether the safety of persons or property was truly in

jeopardy, making the standard unworkable in practice.

outdated view of policework: one that is basically

reactive, waiting for a crime to be reported or observed

and then responding in some automatic fashion based

on the seriousness of the offense under the criminal

code. See Alafair Burke, Policing, Protestors, and

Discretion, 40 Fordham Urb. L.J. 999, 1009-10 (2013);

see generally Dan M. Kahan, Reciprocity, Collective

Action, and Community Policing, 90 Calif. L. Rev.

1513 (2002) (contrasting community policing strategies with the more reactive, traditional model); Debra

Livingston, Police Discretion and the Quality of Life

in Public Places: Courts, Communities, and the

New Policing, 97 Colum. L. Rev. 551 (1997) (describing

community and problem-oriented policing).

By contrast, community-oriented policing emphasizes

that “[l]aw enforcement agencies should work with

community residents to identify problems and collaborate on implementing solutions that produce meaningful

results for the community.” Final Report of the

President’s Task Force on 21st Century Policing 45

(2015), http://www.theiacp.org/Portals/0/taskforce_fin

alreport.pdf. Community policing calls for decentralized decision-making, involving “increasing tolerance

for risk taking in problem-solving efforts, and allowing

officers discretion in handling calls.”

Office of

Community Oriented Policing Servs., U.S. Dep’t of

Justice, Community Policing Defined 5-6 (2014),

https://tinyurl.com/y7gows48. It also envisions continually identifying and prioritizing problems, designing

responses, and evaluating their effectiveness. Id. at

10-12.

The mistaken premise of a frequency-of-arrestbased approach is that certain offenses are too minor,

or result too infrequently in arrest, such that any

arrest for those offenses would be inherently suspect.

Far from it. Sometimes heightened enforcement of

certain “minor” criminal laws can be quite important

to a community. “[T]he narrow focus of the past on the

seeming triviality of incidents of minor disorder

ignores the communal harms that can be visited upon

a neighborhood when these incidents multiply into a

neighborhood problem.” Livingston, supra, at 591.

“[I]n community policing, police often exercise their

discretion by addressing low-level crimes that might

not warrant attention in comparison to more serious

crimes, but which the community views as detrimental

to their quality of life.” Burke, supra, at 1010-11.

Potential community concerns are manifold and could

include, as just a few examples, late-night noise and

disorderly conduct, trespassing, graffiti, illegal

dumping, or package theft.

At the same time, a community-oriented approach

encourages police “to think innovatively” and “view

making arrests as only one of a wide array of potential

responses.” Community Policing Defined, supra, at

10. By seeking the community’s input as to both

problems and responses, “community policing tends to

be extremely localized.” Burke, supra, at 1011. Any

demand that arresting officers show that police

generally arrest for the offense would ignore the

dynamic nature of community policing and undercut

its application. See Livingston, supra, at 650-70

(arguing that political and administrative tools are

more apt mechanisms for managing police discretion

in the era of community policing than judicial review).

II. States And Localities Have Effective

Mechanisms For Ensuring That Officers Do

Not Make Retaliatory Arrests.

Allowing a retaliatory-arrest claim to proceed

despite the existence of probable cause is especially

unwarranted given the comprehensive procedures

that state and local jurisdictions have developed to

address police misconduct and control the power of

arrest. Those safeguards can ably protect against

retaliatory arrests without eliminating the objective,

probable-cause standard for an arrest’s constitutionality and opening the floodgates to damages suits. State

and local governments are better situated to fashion

flexible remedies that balance effective law enforcement with proper restraints on police officers and

redress for their misdeeds.

A. Administrative review of police conduct

provides an effective alternative for

addressing allegations of retaliation

through courts.

State and local jurisdictions are capable of handling

citizen complaints against officers for improper conduct, including retaliatory arrests. Of course, judicial

safeguards will always remain, such as when an arrest

is made without probable cause or where criminal

laws lack “minimal guidelines to govern law enforcement.” Chicago v. Morales, 527 U.S. 41, 60 (1999). But

regardless of the potential for civil liability, officers

who arrest or take other actions for improper reasons

are subject to disciplinary action. Both internal and

external administrative processes exist throughout

the nation to provide an efficient and effective

response to complaints against officers who violate the

law or local policies. This provides a valuable check

against retaliatory arrests.

Law enforcement agencies, including through internal

affairs units, receive and resolve citizen complaints as

an important part of their law enforcement functions.

There is widespread recognition among law enforcement that holding officers accountable for their actions

is essential to maintain the public legitimacy that

police need to be effective. Int’l Ass’n of Chiefs of

Police, Building Trust Between the Police and the

Citizens They Serve 5-7 (2009) (“Building Trust”),

https://ric-zai-inc.com/Publications/cops-p170-pub.pdf;

see also Tom R. Tyler & Jeffrey Fagan, Legitimacy and

Cooperation: Why Do People Help Police Fight Crime

in Their Communities?, 6 Ohio St. J. Crim. L. 231, 23338 (2008) (citing procedural fairness as a source of

police legitimacy, and legitimacy as a major factor in

the success of law enforcement). Indeed, such public

accountability is another component of communityoriented policing. Building Trust, supra, at 5-7.

Citizen complaints also assist a police department in

supervising and managing its officers. Those complaints not only help identify officers who should be

monitored more closely, disciplined, or removed for

misconduct, but also reveal areas where better training or enhanced supervision is needed. In short, police

departments have an interest as well as a duty in

appropriately investigating citizen complaints.

Citizen review boards, or other types of external

review, are another mechanism to address citizen

complaints. “[C]ivilian oversight has been increasingly institutionalized as a regular feature of policing

in cities and counties across the U.S.” Joseph De

Angelis et al., Civilian Oversight of Law Enforcement:

Assessing the Evidence 49 (2016), https://tinyurl.

com/y94aelhc (identifying “more than 140 civilian

oversight agencies, with almost all large cities having

some sort of civilian oversight”). There is a wide range

of civilian oversight—from “limited authority to

review[ ] and mak[e] recommendations to boards that

have investigative and subpoena powers”—and each

community may consider its own form of civilian

oversight that meets its needs. The President’s Task

Force on 21st Century Policing Implementation Guide

7 (2015), https://tinyurl.com/ycznok28. Among its

features, civilian oversight can provide independent

review of citizen complaints.

In the District of Columbia, for example, a citizen

may file a complaint with the independent Office of

Police Complaints, which is overseen by a publicly

appointed board. D.C. Code §§ 5-1104, 5-1105. The

Office of Police Complaints investigates complaints

of harassment (among other types of complaints),

which broadly includes arrests in violation of the law

or internal police guidelines. D.C. Mun. Regs. tit. 6A,

§§ 2104.1, 2199.1. It has the power to subpoena

witnesses and documents. D.C. Code § 5-1111(c).

The Office of Police Complaints even has direct and

immediate access to the videos from body-worn

cameras that all D.C. Metropolitan Police Department

patrol officers now use. D.C. Office of Police Complaints,

Annual Report 2017, at 18-19 (Oct. 31, 2017), https://

tinyurl.com/ycvouesc. If the Office sustains a complaint,

it refers the matter to the Metropolitan Police Department to recommend, and the police chief to decide, the

imposition of discipline. D.C. Code § 5-1112. Generally,

the police chief may not reject the merits determination

of the Office of Police Complaints. Id. § 5-1112(e), (g).

Other cities have similar review boards that investigate citizen complaints against police officers. In New

York City, an independent Civilian Complaint Review

Board with subpoena power investigates several

types of complaints—including complaints of abuse of

authority—and makes merits findings. N.Y.C., N.Y.,

Rules tit. 38A, §§ 1-02(a), 1-23(d). If it substantiates

the allegations, the Board recommends a type of

discipline and, in the most serious cases, can prosecute

disciplinary charges against the officer at an administrative trial. See N.Y.C. Civilian Complaint Rev.

Bd., Police Discipline, https://www1.nyc.gov/site/ccrb/

prosecution/police-discipline.page (last visited Aug. 24,

2018). If the police commissioner intends to impose

discipline at a level below that recommended by the

board or administrative tribunal, the commissioner

must provide a detailed explanation of the reasons and

allow the board an opportunity to respond. N.Y.C.,

N.Y., Rules tit. 38A, § 1-46(f).2

External review can take other forms, such as

review of a department’s internal affairs investigations. For example, the Los Angeles Police Department

has an independent inspector general, who is selected

by a civilian Board of Police Commissioners. L.A.,

Cal., Charter vol. I, § 571(b)(4). The inspector general’s

office oversees the police department’s handling of

complaints of police misconduct. L.A., Cal., Charter

vol. I, § 573. It receives copies of every complaint filed,

These civilian review agencies in the District of Columbia and

New York City regularly report on complaint dispositions,

including discipline and other remedial actions. See D.C. Office

of Police Complaints, Annual Report 2017, supra, at 32, https://

tinyurl.com/ycvouesc; N.Y.C. Civilian Complaint Rev. Bd., SemiAnnual Report, Jan.-June 2017, at 25-31 (Dec. 6, 2017), https://

tinyurl.com/yc7wjjcz. Of course, disciplinary action is imposed in

many other instances directly through police departments. Civilian

review agencies also attempt to resolve complaints through mediation, which is held if both parties agree and can be very effective.

Annual Report 2017, supra, at 22-23; Semi-Annual Report, Jan.June 2017, supra, at 32-36. As the statistics show, civilian

complaints produce meaningful outcomes, not empty processes.

audits selected investigations, and conducts systemic

reviews of the disciplinary system. See L.A. Police

Dep’t, Office of the Inspector General, http://www.

lapdonline.org/police_commission/content_basic_view/

1076 (last visited Aug. 24, 2018). It also has subpoena

power to conduct its own investigations. L.A. Bd. of

Police Comm’rs, Policies and Authority Relative to the

Inspector General § VII (approved Nov. 21, 2000),

https://tinyurl.com/y7dab2vd.

Moreover, through legislation and policymaking,

states can provide oversight of local citizen complaint

processes. See, e.g., Cal. Penal Code § 832.5(a) (requiring each police department to establish and publicize

its procedure to investigate civilian complaints);

id. § 837.2(e)(1) (requiring that the complainant

receive timely, written notification of the complaint’s

disposition); Cal. Dep’t of Justice, Policy Governing

Citizen Complaints Against Law Enforcement (Jan.

2017), https://tinyurl.com/ycqvhuy2 (establishing that

the Attorney General will review citizen complaints

against local law enforcement agencies for possible

investigation after exhaustion of local processes).

Some states have also directed that commissions

develop detailed standards that law enforcement agencies must implement to investigate citizen complaints.

In Connecticut, as specified by statute, those standards address issues such as the manner of acceptance

of complaints, investigation protocols, and the documentation of the receipt of complaints and their

dispositions.

See Conn. Gen. Stat. § 7-294bb;

Conn. Police Officer Standards & Training Council,

Mandatory Uniform Policy: Complaints that Allege

Misconduct by Law Enforcement Agency Personnel

(May 14, 2015), https://tinyurl.com/y93qdw3y. Other

states have similar statutes. See Me. Rev. Stat. tit. 25,

§ 2803-B; Md. Code Ann., Pub. Safety § 3-519; N.J.

Stat. § 40A:14-181; Vt. Stat. Ann. tit. 20, § 2402; see

also R.I. Gen. Laws § 21.2-8.

Regardless of the particular mechanism in each

jurisdiction, administrative processes are available to

thoroughly investigate complaints of retaliatory arrest

and impose appropriate disciplinary action, thus making

a damages remedy unnecessary for deterrence and

retribution.

B. Additional protections exist through

limitations on the arrest power and

through policies on arrest alternatives.

To ensure that the power of arrest is used

appropriately, states may also limit officers’ authority

to conduct a warrantless arrest. States generally

preclude arrest without a warrant for misdemeanors

committed outside of an officer’s presence.

See

Atwater, 532 U.S. at 355-60 (listing statutes). Many

states have also chosen “more restrictive safeguards

through statutes limiting warrantless arrest for minor

offenses.” Id. at 352. Such safeguards include

provision for release on a citation or summons, with a

promise to appear later to answer the charge, in lieu

of a full custodial arrest. By statute or court rule,

almost all states provide for citation release for some

misdemeanors (and occasionally even felonies). Nat’l

Conference of State Legislatures, Citation in Lieu of

Arrest (updated Oct. 23, 2017), https://tinyurl.com/

yd9wsf9d (providing summary chart of state laws).

Twenty-four states create at least “a presumption to

issue citations for certain crimes or under certain

circumstances.” Id. For example, this Court’s decision

in Moore arose because of a Virginia statute that

generally directs officers to issue citations for most

misdemeanor traffic offenses. 553 U.S. at 167; see Va.

Code § 46.2-936. Another Virginia statute generally

requires citations for most misdemeanors that are not

punishable by a jail sentence. Va. Code § 19.2-74.

These and other similar state statutes typically have

exceptions permitting a custodial arrest, such as

where there are reasonable grounds to believe that the

person will not appear to answer the citation, will

continue the offense, or poses a danger to persons or

property. Citation in Lieu of Arrest, supra.

Where state law might not create a presumption or

otherwise establish guidelines for citation release,

localities may set their own policies. For example,

New York City officials announced that police will

issue summonses and “no longer arrest individuals

who commit [low-level] offenses—such as littering,

public consumption of alcohol, or taking up two seats

on the subway—unless there is a demonstrated public

safety reason to do so.” Press Release, District

Attorney Vance, Commissioner Bratton, Mayor De

Blasio Announce New Structural Changes to Criminal

Summonses Issued in Manhattan (Mar. 1, 2016),

https://tinyurl.com/ybcwe806. Other local governments have taken similar measures. See, e.g., Edward

Sheehy et al., Greenville Police to Issue Citations for

Small Crimes Instead of Arrests, WITN.com News

(Oct. 9, 2017), https://tinyurl.com/y9ow3ll9. While

discretionary determinations about public safety will

still likely be involved in the decision whether to issue

a citation in lieu of arrest, guidelines and policies can

ensure that those determinations are based on only

proper considerations.

As this Court has recognized, “it is in the interest of

the police to limit petty-offense arrests, which carry

costs that are simply too great to incur without good

reason.” Atwater, 532 U.S. at 352. States too recognize those costs and have fashioned laws and policies

to achieve an appropriate balance of interests. Citation

in Lieu of Arrest, supra. The arrest limitations

adopted by states and localities further reduce any

potential for retaliatory arrests.

CONCLUSION

This Court should reverse the decision of the court

of appeals.

Respectfully submitted,

KARL A. RACINE

Attorney General for the

District of Columbia

LOREN L. ALIKHAN

Solicitor General

Counsel of Record

CAROLINE S. VAN ZILE

Deputy Solicitor General

CARL J. SCHIFFERLE

Senior Assistant Attorney General

D.C. OFFICE OF THE

ATTORNEY GENERAL

441 4th Street, NW

Suite 630 South

Washington, D.C. 20001

(202) 727-6287

loren.alikhan@dc.gov

Counsel for Amicus Curiae

District of Columbia

ADDITIONAL COUNSEL

CYNTHIA H. COFFMAN

Attorney General

STATE OF COLORADO

1300 Broadway, 10th Floor

Denver, CO 80203

LAWRENCE G. WASDEN

Attorney General

STATE OF IDAHO

P.O. Box 83720

Boise, ID 83720-0010

CURTIS T. HILL, JR.

Attorney General

STATE OF INDIANA

Office of the

Attorney General

200 West Washington Street

Room 219

Indianapolis, IN 46204

DEREK SCHMIDT

Attorney General

STATE OF KANSAS

120 SW 10th Avenue

2nd Floor

Topeka, KS 66612-1597

JANET T. MILLS

Attorney General

STATE OF MAINE

6 State House Station

Augusta, ME 04333-0006

TIM FOX

Attorney General

STATE OF MONTANA

215 North Sanders Street

Helena, MT 59620-1401

MIKE HUNTER

Attorney General

STATE OF OKLAHOMA

313 NE 21st Street

Oklahoma City, OK 73105

PETER F. KILMARTIN

Attorney General

STATE OF RHODE ISLAND

150 South Main Street

Providence, RI 02903

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

1885 North Third Street

Baton Rouge, LA 70802

JIM HOOD

Attorney General

STATE OF MISSISSIPPI

Post Office Box 220

Jackson, MS 39205

HECTOR BALDERAS

Attorney General

STATE OF NEW MEXICO

408 Galisteo Street

Santa Fe, NM 87501

JOSH SHAPIRO

Attorney General

COMMONWEALTH OF

PENNSYLVANIA

Strawberry Square

16th Floor

Harrisburg PA 17120

ALAN WILSON

Attorney General

STATE OF SOUTH CAROLINA

Rembert C. Dennis

Office Building

P.O. Box 11549

Columbia, SC 29211-1549

SEAN D. REYES

Attorney General

STATE OF UTAH

350 North State Street

Suite 230

Salt Lake City, UT 84114-2320

PETER K. MICHAEL

Attorney General

STATE OF WYOMING

2320 Capitol Avenue

Cheyenne, WY 82002

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