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

Supreme Court briefOct 9, 2018

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No. 17-1174

IN THE

Supreme Court of the United States

LUIS A. NIEVES, et al.,

Petitioners,

—v.—

RUSSELL P. BARTLETT,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR AMICUS CURIAE

INSTITUTE FOR FREE SPEECH

IN SUPPORT OF RESPONDENT

ALLEN DICKERSON

INSTITUTE FOR FREE SPEECH

124 South West Street,

Suite 201

Alexandria, Virginia 22314

(703) 894-6800

adickerson@ifs.org

FLOYD ABRAMS

Counsel of Record

KATHLEEN E. FARLEY

BENJAMIN A. TAYLOR

CAHILL GORDON & REINDEL LLP

80 Pine Street

New York, New York 10005

(212) 701-3000

fabrams@cahill.com

Attorneys for Amicus Curiae

Institute for Free Speech

TABLE OF CONTENTS

PAGE

INTEREST OF AMICUS CURIAE . . . . . . . . . . .

INTRODUCTION: MOUNT HEALTHY

AND ITS PROGENY . . . . . . . . . . . . . . . . . . . . .

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

I. SIGNIFICANT DEPRIVATIONS OF FIRST

AMENDMENT RIGHTS WILL OCCUR

IF THE EXISTENCE OF PROBABLE

CAUSE FOR AN ARREST BARS ALL

RETALIATORY ARREST CLAIMS UNDER

ALL CIRCUMSTANCES . . . . . . . . . . . . . . . . .

A. Greene v. Barber,

310 F.3d 889, 892 (6th Cir. 2002) . . . . . . .

B. Gullick v. Ott,

517 F. Supp. 2d 1063 (W.D. Wis. 2007) . .

C. Henneberry v. City of Newark,

2017 WL 1493006

(N.D. Cal. April 26, 2017) . . . . . . . . . . . . . .

D. Cranford v. Kluttz,

278 F. Supp. 3d 848 (M.D.N.C. 2017) . . .

II. MOUNT HEALTHY MUST BE APPLIED

IN RETALIATORY ARREST CASES TO

PERMIT VINDICATION OF CRITICAL

FIRST AMENDMENT INTERESTS . . . . . . .

PAGE

A. The First Amendment Does Not Permit

Courts to Decide Retaliation Claims

By Skirting The Essential Inquiry of

Whether The Government Targeted

Protected Speech Based on its

Communicative Impact . . . . . . . . . . . . . . . .

1. The Mount Healthy Framework

Allows Courts to Determine Whether

State Action Was Taken to Punish

Protected Speech Because of its

Communicative Impact . . . . . . . . . . . . .

2. Focusing Only on The Existence of

Probable Cause Does Not Allow

Courts to Consider Whether a State

Action Was Taken to Punish Protected

Speech Because of its Communicative

Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. Granting Police Officers Unfettered

Discretion to Punish Via Arrest Speech

of Which They Do Not Approve

Impermissibly Chills Speech . . . . . . . . . . .

C. No Other Government Power Can Be

Deployed in Retaliation For Speech

While Maintaining Immunity From

a §1983 Claim . . . . . . . . . . . . . . . . . . . . . . . .

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

iii

TABLE OF AUTHORITIES

PAGE(S)

Cases

City of Hill v. Houston,

482 U.S. 451 (1987) . . . . . . . . . . . . . . . . . . . . . . 20, 22

Connick v. Myers,

461 U.S. 138 (1983) . . . . . . . . . . . . . . . . . . . . . .

Cranford v. Kluttz,

278 F. Supp. 3d 848 (M.D.N.C. 2017) . . . . . passim

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . . . . .

Ford v. City of Yakima.,

706 F.3d 1188 (9th Cir. 2013) . . . . . . . . . . . . .

Greene v. Barber,

310 F.3d 889 (6th Cir. 2002) . . . . . . . . . . . . . passim

Gullick v. Ott,

517 F. Supp. 2d 1063 (W.D. Wis. 2007) . . . passim

Hartman v. Moore,

547 U.S. 250 (2006) . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5

Henneberry v. City of Newark,

2017 WL 1493006

(N.D. Cal. April 26, 2017) . . . . . . . . . . . . . . . . passim

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) . . . . . . . . . . . . . . . . . . . passim

Mount Healthy City School District

Board of Education v. Doyle,

429 U.S. 274 (1977) . . . . . . . . . . . . . . . . . . . . . passim

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) . . . . . . . . . . . . . . . . . . . . . .

PAGE(S)

New York Times v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . .

Norwell v. City of Cincinnati, Ohio,

414 U.S. 14 (1973). . . . . . . . . . . . . . . . . . . . . . . .

Speiser v. Randall,

357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . .

United States v. O’Brien,

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

Periodicals

Christina Ng, Alaska Cops Arresting Drunks

in Bars, ABC NEWS (Jan. 10, 2012),

https://abcnews.go.com/US/illegal-drunkalaska-bars-law/story?id=15330748 . . . . . . .

John MacCormack, Texas man arrested after

wearing Trump hat, shirt to vote, THE

HOUSTON CHRONICLE (Oct. 27, 2016),

https://www.chron.com/news/local/article/

Electioneering-violation-leads-to-arrest10418085.php . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7n, 8

Statutes

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

AS § 04.16.040 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

N.C. Gen. Stat. § 14–288.4(a)(2) . . . . . . . . . . . . . 15, 21n

INTEREST OF AMICUS CURIAE 1

The Institute for Free Speech is a nonpartisan,

nonprofit organization that exists to protect and

defend the First Amendment rights of speech, press,

assembly, and petition. As part of that mission, the

Institute represents individuals and civil society

organizations pro bono in cases raising First

Amendment objections to the regulation of protected

speech. The Institute has an interest in this case

because arrests made in retaliation for the exercise of

First Amendment rights are a particularly chilling

form of governmental response to constitutionally

protected speech disfavored by government officials.

It would imperil First Amendment interests of the

most significant nature if such misconduct by an

agent of the government were immunized from

judicial scrutiny, no matter how egregious the

circumstances, whenever probable cause of a

violation of law may be said to have existed.

To avoid that result and to vindicate First

Amendment principles of the highest order, the

Institute for Free Speech submits this brief in

support of respondent Russell Bartlett and urges the

court to affirm the decision below and answer the

Question Presented in the negative. That an arrest

effected at the discretion of an individual acting on

behalf of the state was supported by probable cause

Pursuant to Sup. Ct. Rule 37.6, amicus affirms that no

counsel for a party authored this brief in whole or in part and

that no person other than amicus and its counsel made a

monetary contribution to its preparation or submission.

Pursuant to Sup. Ct. Rule 37.2(a), all parties have provided

blanket consent to the filing of amicus curiae briefs, which the

Clerk of the Court has noted on the docket.

should not, in and of itself, bar a First Amendment

retaliatory arrest claim under 42 U.S.C. § 1983.

INTRODUCTION:

MOUNT HEALTHY AND ITS PROGENY

Earlier this year, when this Court decided a

strikingly similar case concerning a claim of

retaliatory arrest effected pursuant to an official

municipal policy, it directed the Eleventh Circuit to

analyze the claim pursuant to the framework

established in Mount Healthy City School District

Board of Education v. Doyle, 429 U.S. 274 (1977) that

it has long used to address claims of government

retaliation in violation of First Amendment rights.

Lozman v. City of Riviera Beach, 138 S. Ct. 1945,

1955 (2018). In Mount Healthy, the Court determined

that to state a claim for First Amendment retaliation,

a plaintiff must show that: (1) her speech was

constitutionally protected; (2) she suffered adverse

conduct that would likely deter a person of ordinary

firmness from engaging in such speech; and (3) in

part, plaintiff’s constitutionally protected activity

motivated defendant’s adverse action. 429 U.S. at

285-287.

The Mount Healthy analysis often focuses on the

third factor, which addresses the issue of motivation.

Once the plaintiff shows that her protected conduct

was a motivating factor triggering the defendant’s

adverse conduct, the burden shifts to the defendant to

show that it would have taken the same action in the

absence of the protected conduct, in which case the

defendant cannot be held liable.

Id. at 287.

Defendants cannot simply contend that the adverse

action was justified by circumstances other than

retaliatory motive—they must show that this other

justification actually motivated the adverse action.

Indeed, a government act taken in retaliation for the

exercise of First Amendment rights is actionable

under § 1983 even if the act, when taken for a

different reason, might have been proper. That is

what this Court held in Mount Healthy, and also in

the recent Lozman case in the context of a retaliatory

arrest effected pursuant to an official municipal

policy. The same rule should apply when a member

of the police arrests someone who would not

otherwise have been arrested but for the policeman’s

decision to retaliate against protected speech.

To be clear, application of Mount Healthy in a

retaliatory arrest case neither requires nor permits

lower courts to ignore the issue of probable cause.

Under Mount Healthy, a court analyzing a claim of

retaliatory arrest must consider whether the arrest

would have occurred absent the protected speech.

The presence of probable cause is necessary to show

the arrest would have occurred irrespective of the

speech, but, because police officers are empowered

with significant discretion in deciding who and when

to arrest, its existence alone does not preclude a

retaliatory arrest claim. In those circumstances

where plaintiffs can demonstrate that the but-for

cause of the arrest was the desire to retaliate against

plaintiff’s protected speech, an action under § 1983

may proceed.

In this case, petitioners urge the Court to create an

exception to Mount Healthy in cases involving arrests

at the discretion of an individual police officer or

another government official. In support of their

argument, they point to Hartman v. Moore, 547 U.S.

250 (2006), where the Court set forth, in the context

of retaliatory prosecution claims, the only exception

to Mount Healthy made to date. Under Hartman,

when retaliatory prosecution claims are at issue,

courts must make a threshold determination that the

prosecution proceeded despite the absence of probable

cause for the offense. See id. Only after finding

absence of probable cause does the court return to the

Mount Healthy-like analysis. Id. at 265-66.

The Hartman exception, however, is only necessary

to resolve the “distinct problem of causation” present

in evaluating retaliatory prosecution claims that is

not present in other Mount Healthy cases. Id. at 263.

The causation problem there identified by this Court

is that a plaintiff bringing a retaliatory prosecution

claim necessarily “must show that the nonprosecuting

official acted in retaliation, and must also show that

he induced the prosecutor to bring charges that

would not have been initiated without his urging.”

Id. at 262. By its nature, such a showing is exceedingly

difficult to make because “the longstanding

presumption of regularity accorded to prosecutorial

decisionmaking,” id. at 263, makes the prosecutor’s

mind a black box—the court may not inquire into the

subjective motivation of the prosecutor who brought

the charges. As a result, so long as probable cause for

the prosecution exists, the underlying motivation of

the state in commencing the prosecution may not be

challenged without intruding into long-protected

decisionmaking areas.

In cases involving retaliatory arrests, there is no

such “legal obstacle,” as the Court in Hartman put it,

to deciding whether police who arrest people for any

of the multitudes of potential offenses did so with the

motivation of suppressing or punishing constitutionally

protected speech. Indeed, this Court has previously

analyzed a police officer’s motivation to arrest and

found it to be retaliatory.

Norwell v. City of

Cincinnati, Ohio, 414 U.S. 14, 16 (1973) (reversing

disorderly conduct conviction because the Court was

“convinced that petitioner was arrested and convicted

merely because he verbally and negatively protested

Officer Johnson’s treatment of him.”).

The core legal issue in this case is thus whether

this Court should create a second exception to the

Mount Healthy standard specifically with respect to

arrests. We think not. Unlike a retaliatory prosecution

claim, a retaliatory arrest claim may be examined

using the classic Mount Healthy framework because,

unlike the Hartman situation, a court is permitted to

fully examine the motivation of police officers and

any other government officials involved in the

decision to arrest. Just as a court can examine the

motive behind an arrest effected pursuant to an

official municipal policy, see Lozman, 138 S. Ct. at

1955, so too can it examine the motive behind other

arrests.

While application of Mount Healthy

obviously does not and should not guarantee the

success of a plaintiff alleging unconstitutional

retaliation, application of Hartman assures its failure

in any situation in which probable cause is held to

exist. That is not a result consistent with the First

Amendment.

ARGUMENT

I. SIGNIFICANT DEPRIVATIONS OF FIRST

AMENDMENT RIGHTS WILL OCCUR IF THE

EXISTENCE OF PROBABLE CAUSE FOR AN

ARREST BARS ALL RETALIATORY ARREST

CLAIMS UNDER ALL CIRCUMSTANCES

If this Court were to create a new exception to

Mount Healthy which barred retaliatory arrest claims

in cases in which probable cause can be demonstrated,

people could be arrested in retaliation for criticizing

the police or offending them for any reason, including

their expression of political views not shared by a

particular police officer. In a nation awash with

criminal statutes that are enforced with varying

degrees of regularity—and thus often generally

unenforced—it is not difficult to find probable cause

to arrest. For example, the case at hand arose in

Alaska, a state that regulates alcohol so strictly that

it is illegal to be intoxicated inside a bar or any other

establishment licensed to sell liquor. AS § 04.16.040

(“A drunken person may not knowingly enter or

remain on premises licensed under this title.”). This

statute is routinely violated, but police retain the

discretion to enforce it, and have stated to the press

that they do so selectively.2 It is not difficult to

imagine a plainclothes policeman who cannot feasibly

arrest every intoxicated person on the premises being

drawn to target a patron loudly proclaiming political

views with which the officer vehemently disagrees.

Petitioners acknowledge, as they must, that their

framework “might preclude recovery for meritorious

claims.” Pet Br. at 48. Notwithstanding their

acknowledgement of the risk, articulated by this

Court in Lozman, that “some police officers may

exploit the arrest power as a means of suppressing

speech,” Pet Br. at 49 (quoting Lozman, 138 S. Ct. at

1953), 3 they maintain that the likelihood that officers

Christina Ng, Alaska Cops Arresting Drunks in Bars,

ABC NEWS (Jan. 10, 2012), https://abcnews.go.com/US/illegaldrunk-alaska-bars-law/story?id=15330748 (describing a 2012

effort to start enforcing this statute by plainclothes policemen,

who ignored individuals they determined were only mildly

intoxicated, and focused on arresting individuals they believed

were extremely drunk.).

This Court cited the Institute’s amicus brief for that

proposition. Lozman, 138 S. Ct. at 1953.

will actually suppress speech is minimal in practice,

and that the speech suppressed is not terribly

important. Pet Br. at 51-52. These contentions

simply overlook numerous non-hypothetical scenarios

memorialized in court cases and news reports. We

set forth below the facts of four recent cases—one

from a court of appeals and three from federal district

courts—which demonstrate how outspoken people are

routinely arrested in retaliation for their protected

speech, and illustrate the magnitude of the speechdestructive impact of the rule sought by petitioners.

Were this Court to remove a check on unlimited

police discretion to arrest by imposing a bar on

retaliatory arrest claims made any time probable

cause of a violation of law could be said to have

existed, there is no reason to expect that such cases

would be infrequent.

Consider, for example, the following: on October 24,

2016, Brett Mauthe entered a polling location in New

Braunfels, Texas. Mauthe was told to remove a hat

bearing a Trump campaign slogan, and to turn inside

out his t-shirt reading “Basket of Deplorables” to

comply with an electioneering statute. Mauthe agreed

to remove the hat, but declined to turn his shirt

inside out. He was arrested. The county elections

coordinator told the press that in her two decades

working at the county election office she had never

seen a potential voter arrested on such a charge. 4

Furthermore, a GOP chairman in a nearby county

told the press that poll-watchers in relatively liberal

San Antonio had seen voters wearing Trump shirts

John MacCormack, Texas man arrested after wearing

Trump hat, shirt to vote, THE HOUSTON CHRONICLE (Oct. 27,

2016), https://www.chron.com/news/local/article/Electioneeringviolation-leads-to-arrest-10418085.php.

told to turn them inside-out while voters wearing

shirts supporting Hillary Clinton were not. Id.

Under the legal test urged by petitioners, even

armed with evidence that a police officer patrolling a

particular early-voting location had arrested all

persons wearing Trump shirts who refused to turn

them inside out, but let people wearing Hillaryemblazoned shirts to remain within the 100 foot

radius in which electioneering is prohibited, no

person arrested could state a claim for retaliatory

arrest. Indeed, that would be true even if the officer

had unambiguously said to the would-be Trump

voters that he was arresting them because of their

Trump-supporting apparel.

Any such retaliation based on the voters’ political

and social views would be flatly inconsistent with the

core of the First Amendment.

The four cases

described below—three that were permitted to

proceed despite the presence of probable cause and

one that was not—illustrate the accuracy of this

proposition.

A. Greene v. Barber, 310 F.3d 889, 892 (6th

Cir. 2002)

In Greene v. Barber, 310 F.3d 889 (6th Cir. 2002),

plaintiff Anthony Greene visited the Grand Rapids

Police Department to seek return of his car after it

had been towed from a no-parking zone. Id.at 892.

In a raised voice, Mr. Greene objected to paying

storage fees for the period before he received

notification his car was in storage. Id. Mr. Greene

was referred to Lieutenant Jack Barber, who

informed him the charge was standard procedure;

Mr. Greene replied by telling the lieutenant he was

“really being [an] asshole.”

Id.

The following

conversation transpired:

Lt. Barber: “You can’t talk to me like that in

my building.”

Mr. Greene: “What do you mean I can’t talk

to you like this in your building?

I’m

exercising my freedom of speech. This is the

United States of America and we have

freedom of speech here and if you don’t like

it you should move to another country.”

Lt. Barber: “Well, not in my building.”

Mr. Greene: “Well, if that’s how you feel

you’re really stupid.”

Lt. Barber: “You’re under arrest.”

Id. at 892-93.

Mr. Greene was pepper sprayed and violently

placed under arrest. Id. at 893. He was charged with

creating a disturbance in violation of a local

ordinance, and with hindering and opposing a police

officer, for which he was ultimately acquitted. Id.

Mr. Greene brought a civil rights action alleging,

inter alia, retaliatory arrest in violation of his First

Amendment rights. Id.

The Court of Appeals found that even though a

“respectable argument” could be made that there was

probable cause to believe that Mr. Greene was

engaging in a disturbance in a public place in

violation of the municipal statute, that did not

foreclose a violation of Mr. Green’s First Amendment

rights, as a permissible act taken in retaliation for

the exercise of a constitutionally protected right is

actionable under § 1983. Id. 895-96. Further, the

court reasoned, Mr. Greene’s words were protected

speech, as they could not reasonably be expected to

incite a breach of the peace, especially “by a police

officer whose sworn duty it was to uphold the law.”

Id. The court applied the Mount Healthy framework

and held that questions of fact as to whether Lt.

Barber would have taken the same action in the

absence of Mr. Green’s protected speech precluded

dismissal of the retaliation claim on summary

judgment. Id. at 897-98.

B. Gullick v. Ott, 517 F. Supp. 2d 1063 (W.D.

Wis. 2007)

In Gullick v. Ott, 517 F. Supp. 2d 1063 (W.D. Wis.

2007), Thomas Gullick sued deputy sheriff Terry Ott

in his individual capacity for issuing a citation in

retaliation for Ott’s supporting a particular political

candidate. Gullick was well-known as a supporter of

town-sheriff candidate Richard Bradner, and was

“disliked by supporters of” Bradner’s opponent,

Dennis Richards. Id at 1065. Ott, on the other hand,

was an avid supporter of Richards. Id. In fact, Ott’s

support was so intense that even before the incident

giving rise to this case, another officer had warned

Gullick to “look out for” Ott. Id. at 1066. In the

course of his warning, the officer predicted that Ott

would treat Gullick unfairly were the two to ever

have a dispute, because of their opposing political

views. Id.

The interaction giving rise to the suit began when

Ott saw Gullick standing on the side of the road near

a sign that read: “Richards for Sheriff.” Id. Ott

pulled off to the side of the road, approached Gullick,

and asked him why he was near the sign. Id. Gullick

maintained he said that he was examining the sign to

see whether it had been placed illegally on a public

right of way; according to Ott, Gullick responded that

he went near the sign to urinate. Id.

Shortly thereafter, Ott told Gullick to wait in his

car while he took a look around. Id. Ott surveyed the

area, and then contacted the sheriff’s dispatch center

to discuss the situation. Id. Ott identified Gullick to

the dispatcher, and then described what he had seen.

Id. In that description Ott noted that the “Richards

for Sheriff” sign was “bent over onto the ground.”

Ott’s supervisor visited the scene later that night and

found no such damage to the sign. Id.

With Gullick still waiting in his car, Ott started

text-message conversations with two other officers.

In one of the conversations, the other officer wrote

that Gullick was “a political fanatic,” and that Ott

should call him. Id. at 1067. Ott responded that he

could not make the call, but that he was in search of

the statute on public urination. Id. In the other

conversation, the other officer asked whether Ott

thought Gullick was the person responsible for the

anti-Richards fliers that were placed around town.5

Id.

After his conversation, Ott returned to Gullick,

issued a citation for public urination, and asked

whether he could search his car for anti-Richards

fliers.6 Id. Gullick consented, and Ott searched

Gullick’s car to no avail. Id. The stop lasted a little

over one hour. Id.

In accordance with the Mount Healthy framework,

the court analyzed the absence of probable cause as

While the stop was ongoing, Richards called his

campaign manager to tell him that Gullick had been caught

“peeing on a sign or bending a sign.” The manager responded

that “they finally caught” Gullick. Id.

In his police report, Ott wrote that he had searched

Gullick’s car for anti-Richards fliers in pursuit of “evidence to

support [his] case of criminal damage to a political sign.” Id.

one factor in its larger inquiry into whether the

arrest was motivated by retaliatory animus. The

court found that the parties’ diametrically opposing

viewpoints, the ominous warning to Gullick, the

infrequency with which public-urination statutes are

enforced (especially in rural areas), the dispute of fact

as to the absence of probable cause, and the

groundless search of Gullick’s car all suggested that

the factor driving Ott’s decision to give Gullick a

citation was actually Gullick’s support of Bradner.

Id. Summary judgment was thus denied to deputy

sheriff Ott.

C. Henneberry v. City of Newark, 2017 WL

1493006 (N.D. Cal. April 26, 2017)

Henneberry v. City of Newark, 2017 WL 1493006

(N.D. Cal. April 26, 2017) concerned John

Henneberry, who frequently attended City Council

meetings and “actively participated in Newark

politics,” criticizing the salaries of City officials and

their decisions to cut back public services. Id. at *1.

Newark City officials and police officers were familiar

with Mr. Henneberry because of his frequent

participation at meetings, and found his criticism and

use of profanity to be “hurtful.” Id.

Mr. Hennberry saw advertisements about an

upcoming State of the City address, and found

further information about the event online on the

“Community Events” page of the City of Newark

Chamber of Commerce website. Id. The event

description and linked flyer indicated that the event

would be held at a Hilton hotel and that portions of

the event, including a luncheon, required a paid

ticket. Id. It also stated that free seating would be

available for those who did not attend the lunch. Id.

The event description and flyer did not indicate that

the event was private, nor did they indicate

reservations were required to sit in the gallery

seating. Id. Although defendants contended on

summary judgment that the event was private and

reservations were required, the court determined the

question was “at the very least ambiguous.” Id. at

*10.

When Mr. Henneberry arrived at the State of the

City address, he sat in the gallery section seating

wearing a nametag he filled out at an unstaffed table.

Id.at *2. Mr. Henneberry did not speak, but took

notes on a pad of paper. Id.

Defendant Newark City Manager John Becker

observed plaintiff was present and, worried about

Plaintiff “embarrassing the Mayor,” asked Newark

Chamber of Commerce President Linda Ashley if

there was “some reason why [Plaintiff] shouldn’t be

here.” Id. Ashley responded that “we don’t let

anybody in who doesn’t have a reservation” and “told

Becker words to the effect that she would get Becker

to leave because he did not have a reservation.” Id..

Ashley approached the gallery, inquired of those

seated there for the first time if they had

reservations, and then informed Mr. Henneberry he

needed to leave because he did not have a

reservation. Id. at *2, *10. Mr. Henneberry declined

to leave, citing a California law that requires

meetings of local government bodies to be open to the

public. Id. at *2. The Newark Police Commander

and a plainclothes officer joined the discussion, and

Mr. Henneberry continued to refuse to depart. Mr.

Henneberry did not use inappropriate language

during this confrontation, nor was he loud,

confrontational, or abusive. Id.

Two uniformed police officers physically removed

Mr. Henneberry from the event. After confirming

with the police commander, Defendant Officer

Fredstrom handcuffed Mr. Henneberry and placed

him into a patrol car. Id. at *3. After conducting an

investigation, Officer Fredstrom concluded that he

had probable cause to arrest Mr. Henneberry for

trespass. Id. at *3.

The court, applying Ninth Circuit precedent,

determined that while there was probable cause to

arrest plaintiff, First Amendment retaliation claims

against Becker and Officer Fredstrom could proceed

to trial. Id. at *10-*11. The court noted that a

reasonable trier of fact could conclude Becker

triggered plaintiff’s removal to prevent him from

engaging in the type of speech he had previously

engaged in at City Council meetings. Id. The court

further concluded that Officer Fredstrom’s decision to

arrest Mr. Henneberry for trespassing instead of

citing and releasing him, could allow a reasonable

trier of fact to determine the arrest was in retaliation

for his prior protected speech at City Council

meetings. Id. at *12.

D. Cranford v. Kluttz, 278 F. Supp. 3d 848

(M.D.N.C. 2017)

In Cranford v. Kluttz, 278 F. Supp. 3d 848

(M.D.N.C. 2017), plaintiff Brian D. Cranford, a

Christian “street preacher” who traveled his local

area professing his interpretation of the Bible on

public streets, began preaching at the “Farmers Day

Festival,” a street fair featuring a farmer’s market

and other local vendors. Id. at 853. Local police

Chief Eddie Kluttz reassigned Detective Reese Helms

from general patrol duty and instructed him to

observe Cranford, telling Detective Helms that “if

[plaintiff] violates any law, he should be arrested.”

Excerpts of Dep. of Reese Helms at 17, 20, Cranford

v. Kluttz, No. 15-cv-00987 (M.D.N.C., Dec. 1, 2016),

ECF No. 31-3. When Detective Helms told Cranford

he could not preach on Festival grounds or pass out

literature inside festival grounds because he had not

registered for a vendor booth, Cranford stood near the

boundary of the festival grounds, and preached to

passersby, focusing on the topic that women who did

not dress modestly were “whores and prostitutes.”

Id. at 853-854.

After Cranford’s preaching precipitated a

“contentious” conversation with a specific festivalgoer,

Detective Helms approached Cranford and told him,

“[y]ou’re not gonna be disrespectful” and “don’t start

causing issue with the people. You can preach, but

that has nothing to do with talking about people.” Id.

at 854. Detective Helms’ instructions were evidently

based on the North Carolina state statute prohibiting

“[d]isorderly conduct,” which included causing a

public disturbance by “[m]ak[ing] or us[ing] any

utterance, gesture, display or abusive language which

is intended and plainly likely to provoke violent

retaliation.” N.C. Gen. Stat. § 14–288.4(a)(2);

Cranford, 278 F. Supp. 3d at 856.

Cranford continued to preach that women should

dress modestly, at times addressing his comments to

specific festivalgoers and at one point gesturing to

Detective Helms’ wife and family, stating

“All you ladies need to learn how to put on

some clothes, too. I’m talkin’ to her. I’m

talkin’ to your family members. And all of

those ladies over there. The Bible says that

a woman should dress modestly. See a lot of

ladies out here dressed like tramps and

whores and prostitutes today. The Bible

says you dress modestly. Today all you

ladies who’s dressed half-nekkid out here.”

Id. at 854, 872.

Immediately before Cranford’s arrest, he and

Detective Helms had the following exchange:

“Defendant Helms interrupted him, ‘Sir, you

cannot call people whores and prostitutes.’

[Cranford] immediately responded, ‘The

Bible says it calls ’em whores and prostitutes.’

Defendant Helms said, ‘If you say that one

more time, I’ma place you under arrest’ and

[Cranford] again immediately responded,

‘You can’t be whores and prostitutes, you

can’t be.’” Id. at 854 (internal citations

omitted).

Cranford filed multiple claims relating to his

arrest, including a claim for First Amendment

retaliation. In considering other claims, the court

found probable cause to confer qualified immunity on

the defendants for a possible Fourth Amendment

violation. Id. at 868-874. The court acknowledged

that the statements that precipitated Cranford’s

arrest could have been general professions of his

interpretation of Biblical principles, but it also found

that it was reasonable to conclude that Cranford may

have intended his statements to provoke specific

individuals. Id. at 869-70. The court found that

there had been probable cause to arrest because

Cranford was ultimately convicted of disorderly

conduct by a state court. Id. at 874-875.

The court then concluded that notwithstanding

that it was “possible, at least theoretically, that

Defendant Helms also acted in retaliation for

[Cranford’s] exercise of his First Amendment rights,”

Cranford could not state a claim against Detective

Helms for retaliatory arrest due to the existence of

probable cause. Id. at 874.

These cases—more could easily be cited—illustrate

the wide range of circumstances in which First

Amendment rights would be and sometimes already

have been imperiled by a rule of law which bars

retaliation claims so long as probable cause exists for

an arrest to be made. Application of Mount Healthy

would assure retaliatory arrest claims are analyzed

under a long-applied test, which considers both the

existence of probable cause and whether an arrest

was motivated by animus to constitutionally

protected speech. As a wide variety of speech is

susceptible to suppression via arrests, a per se rule

barring all First Amendment retaliation claims so

long as probable cause for an arrest existed is

constitutionally indefensible.

II. MOUNT HEALTHY MUST BE APPLIED IN

RETALIATORY ARREST CASES TO PERMIT

VINDICATION OF CRITICAL FIRST AMENDMENT INTERESTS

The above cases also reveal that the framework

articulated by this Court in Mount Healthy, which

considers probable cause, but does not allow its

existence, in and of itself, to defeat a retaliatory

arrest claim, should be followed. The Mount Healthy

framework, unlike that set forth in Hartman, allows

the Court to make crucial inquiries into whether

the communicative impact of protected speech

impermissibly motivated an arrest. Courts cannot

protect First Amendment rights using a mode of

inquiry that does not permit them even to examine

whether protected speech was targeted based on its

communicative impact.

A. The First Amendment Does Not Permit

Courts to Decide Retaliation Claims By

Skirting The Essential Inquiry of Whether

The Government Targeted Protected

Speech Based on its Communicative Impact

The First Amendment demands that courts

evaluating the substance of a claim of a First

Amendment rights violation must at least inquire

into whether state action (1) targets protected speech,

and (2) whether that speech was targeted because of

its communicative impact. See NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 915-16 (1982) (“The fact

that [a non-violent, politically motivated boycott] is

constitutionally protected, however, imposes a special

obligation on this Court to examine critically the

basis on which liability was imposed.”). Even where

this Court has upheld restrictions on conduct that

have secondary effects on speech, it has first, as a

threshold matter, analyzed whether or not the

application of the law targeted the communicative

impact of the conduct. See United States v. O’Brien,

391 U.S. 367, 381–82 (1968) (“In other words, both

the governmental interest and the operation of the

1965 Amendment are limited to the noncommunicative

aspect of O’Brien’s conduct . . . . For this noncommunicative impact of his conduct, and for nothing else,

he was convicted.”).

1. The Mount Healthy Framework Allows

Courts to Determine Whether State

Action Was Taken to Punish Protected

Speech Because of its Communicative

Impact

In circuits that apply the Mount Healthy

framework in retaliatory arrest cases, courts may

properly examine whether the officer targeted speech

for its communicative impact. In these circuits, the

existence of probable cause is considered as one

element of the third Mount Healthy factor—not as a

separate, dispositive element on its own.

ascertaining whether plaintiff’s constitutionally

protected activity (speech) motivated defendant’s

adverse action (arrest), the court evaluates whether

the presence of probable cause was the but-for cause

of the arrest, or if in reality, the arrest only occurred

to retaliate against speech that is protected by the

First Amendment. See, e.g., Ford v. City of Yakima.

706 F.3d 1188, 1193 (9th Cir. 2013). In both Gullick

and in Henneberry, the courts employed this framework

to conclude the First Amendment retaliation claims

should proceed because of the very real possibility

that plaintiffs suffered adverse action in truth not

because of any offense they committed, but because

they crossed paths with government officials who

opposed their political beliefs. Gullick, 517 F. Supp.

2d at 1069; Henneberry, 2017 WL 1493006 at *11. In

resolving on the merits of a claim that a government

official retaliated against speech opposing him

politically, the court must be able to consider whether

the government targeted the speech because of its

message. See First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765, 777 n.11 (1978) (“Freedom of expression

has particular significance with respect to government

because it is here that the state has a special incentive

to repress opposition and often wields a more

effective power of suppression.”) (internal quotation

marks omitted).

2. Focusing Only on The Existence of

Probable Cause Does Not Allow Courts

to Consider Whether a State Action

Was Taken to Punish Protected Speech

Because of its Communicative Impact

If the absence of probable cause is a separate

element required to state a claim for retaliatory

arrest against an individual officer, a court can

dismiss a claim whatever the facts may be, without

even addressing critical First Amendment principles.

Once the court finds probable cause, the analysis

ceases, and the First Amendment retaliation claim is

defeated, without the court even looking at whether

the plaintiff had engaged in speech deserving of

constitutional protection, and whether the officer took

action based on the message plaintiff conveyed.

Greene illustrates that if probable cause is a

complete bar to a retaliatory arrest claim, the police

are empowered with an unconstitutional authority to

repress speech that criticizes or offends them. The

plaintiff in Greene was arrested after he challenged

the officer’s baseless proposition that he had special

power to punish words critical or offensive to him

while inside of the police station. 310 F.3d at 892

(“You can’t talk to me like that in my building.”). As

the First Amendment prevents a state legislature

from providing the police with the power “to arrest

individuals for words or conduct that annoy or offend

them,” City of Hill v. Houston, 482 U.S. 451, 465

(1987), an officer should not be able to seize this

power indirectly by enforcing other permissible

statutes in a First Amendment-retaliatory fashion. If

an officer does so, he must face a § 1983 claim.

Otherwise, in plaintiff’s preferred legal world, even if

the officer in Greene had told the plaintiff that car

storage fees could be waived only for confirmed

Democrats, plaintiff’s outburst at ridiculous viewpoint

discrimination would constitute probable cause to arrest,

and foreclose a First Amendment retaliation claim.

Cranford also well illustrates the dangers of

requiring probable cause as a separate element of a

retaliation claim, as it shows how an officer with

arguable probable cause may shut down speech with

which he disagrees. Although as the court discussed,

certain of plaintiff’s statements regarding women

dressed as “whores and prostitutes” may have been

directed as personal attacks on individual women

present at the scene—thus creating probable cause to

arrest under the relevant state statute prohibiting

“words and conduct likely to provide ordinary men to

violence”7 the statements that provoked his arrest

were much less clearly targeted at individuals. Indeed,

it was arguably plaintiff’s interpretation of biblical

teachings that precipitated his arrest, as his statement

“The Bible says it calls ’em whores and prostitutes”

prompted Detective Helms to threaten arrest, and

plaintiff’s follow-up statement “You can’t be whores

and prostitutes, you can’t be” finally elicited handcuffs.

Cranford, 278 F. Supp. 3d at 854. Despite plaintiff’s

and other evidence in the record suggesting that

Detective Helms and Chief Kluttz targeted Cranford

for arrest based on their knowledge of his prior

preaching, the court was not permitted to consider

whether plaintiff was arrested in retaliation for

expressing his religious views. Id. at 875-875. In the

Fourth Circuit, once probable cause to arrest for any

N.C. Gen. Stat. § 14–288.4(a)(2).

reason is found, the court may inquire no further.

That is precisely why a rule imposing the far more

holistic Mount Healthy approach is needed.

B. Granting Police Officers Unfettered

Discretion to Punish Via Arrest Speech of

Which They Do Not Approve Impermissibly

Chills Speech

Petitioners forthrightly acknowledge that analyzing

the existence of probable cause as a separate factor in

First Amendment retaliation claims for arrests

effectively gives officers free rein to retaliate against

speech that consists of “challenges to the officers’

authority, or simply personal insults.” See Pet. Br. at

51. However, petitioners argue this consequence is

acceptable because speech critical of police officers

does not rank on the “highest rung of the hierarchy of

First Amendment values,” and arrests that shut

down such speech are “unlikely to undermine the free

exchange of ideas or ‘[t]he maintenance of the

opportunity for free political discussion to the end

that government may be responsive to the will of the

people and that changes may be obtained by lawful

means.’” Pet. Br. at 51-52 (quoting Lozman, 138 S.

Ct. at 1954-55, New York Times v. Sullivan, 376 U.S.

254, 269 (1964); Connick v. Myers, 461 U.S. 138, 145

(1983). To the contrary, criticism of or challenges to the

authority of government agents specifically tasked with

law enforcement is critical to a democracy. As this

Court has observed, “[t]he freedom of individuals

verbally to oppose or challenge police action without

thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation

from a police state.” City of Houston, 482 U.S. at 462-63.

This vital speech criticizing agents of the state is

inevitably chilled when citizens cannot be assured

that they will not be arrested for engaging in it. The

decision to arrest is influenced by innumerable

factors, beyond the simple question of whether the

suspect may creditably be charged with having

broken the law. Police cannot possibly arrest for

every violation of the law that might merit it.8 A

great many laws, particularly statutes that regulate

disorderly conduct and/or disturbing the public order

as exemplified in Cranford and in Greene, or Alaska’s

statute prohibiting intoxication inside bars, could not

realistically be enforced against every offender.

Police have considerable discretion to decide when to

arrest, even if they directly observe circumstances

that create probable cause. See, e.g, Cranford, 278

F.Supp.3d at 854 (Detective Helms warning plaintiff

to stop engaging in preaching directed at specific

individuals in potential violation of the statute before

actually deciding to arrest.). So too do police have

considerable discretion in deciding whether to arrest,

which immediately shuts down speech, or to instead

issue a citation, which does not. See, e.g., Henneberry,

2017 WL 1493006 at *11 (considering officer’s

decision to arrest plaintiff rather than to issue a

citation as evidence of retaliatory motive.).

While it is settled law that the Constitution permits

police to exercise discretion in deciding whether or not

to arrest, this latitude necessarily requires courts to

assess whether a retaliatory arrest supported by

probable cause was primarily motivated by retaliation

for protected speech. A person who does not know when

And, as Greene well illustrates, those who have not

broken the law may still be arrested—Mr. Greene was cleared

on the charges of creating a disturbance. The very essence of

probable cause is that officers are permitted to arrest on

suspicion of, not confirmation of, illegal activity.

police may exercise discretion to arrest pursuant to

innumerable statutes that are selectively enforced

cannot be certain that her controversial speech will not

suddenly trigger ultra-strict enforcement of an obscure

traffic law or loitering statute. Absent a clearly

established and enforced remedy via a retaliation claim,

the uncertainty surrounding when an officer might

actually arrest out of disagreement with the expressed

views of the speaker could create the very uncertainty

that causes citizens to “steer far wider of the unlawful

zone. . .” Speiser v. Randall, 357 U.S. 513, 526 (1958).

There is a significant risk that a citizen who has

publicly challenged and criticized governmental

authority will find himself unceremoniously arrested

later, on a charge entirely unrelated to his speech.

See Gullick, 517 F. Supp. 2d 1063; Henneberry, 2017

WL 1493006.

It is far easier to cease one’s

controversial speech than it is to design one’s life so

that no police officer could ever suspect one of having

committed a violation of any one of the innumerable

laws imposed by our society. In petitioners’ world,

the risks of attending or participating in controversial

protests would multiply. If, for example, a clash

between pro-choice and pro-life activists sparked a

riot, under petitioner’s framework the police would be

free to arrest only the pro-life activists when there

was probable cause to do so. In fact, even if an officer

acknowledged that she rounded up only pro-life

protesters, an arrest would not be actionable so long

as probable cause for a violation of law existed.

C. No Other Government Power Can Be

Deployed in Retaliation For Speech While

Maintaining Immunity From a §1983 Claim.

In other circumstances where it is plain that a

police officer or other government official took

adverse action due to an outspoken citizen’s protected

speech, a First Amendment retaliation claim may

follow. See, e.g., Linnemann v. City of Aberdeen, 2013

WL 3233526, *7 (D. Md. June 25, 2013) (First

Amendment retaliation claim sustained where officer

threw anti-abortion signs into the middle of the

street); Richter v. Maryland, 590 F. Supp. 2d 730, 734

(D. Md. 2008) aff’d sub nom, Richter v. Beatty, 417 F.

App’x 308 (4th Cir.2011) (First Amendment retaliation

claim sustained where person of ordinary fitness

would likely “refrain from putting political speech on

their cars if they thought that they would suffer

immediate retaliation in the form of a repair order”

issued by police); Dorr v. Weber, 741 F. Supp. 2d

1010, 1020 (N.D. Iowa 2010) (First Amendment

retaliation claim sustained where the sheriff denied

renewal of his concealed carry permit due to his

political advocacy activities, including passing out

flyers for an organization that advocated shrinking

the budget of the county government, including the

sheriff’s office). In fact, no other government official

may take adverse action against a person who has

insulted a police officer. See J.G. Ex Rel. K.C. V.

Hackettstown Public School District, No. 8-cv-2365

(PGS)(DEA) (D.N.J., August 8, 2018) (student could

proceed with retaliation claim where school suspended

her after referring to a fictional police officer in

reading material for English class as a “pig.”).

Because government officials cannot generally

wield any discretionary power with absolute immunity

from retaliation claims, most government officials

must persistently carry out government functions

even in the face of speech with which they disagree.

Unlike the officer in Greene, most government

officials cannot terminate an interaction with a person

they find irritating, disrespectful, or disagreeable

through a swift exercise of the arrest power. Nor can

governmental officials use any discretionary power as

a sword in a debate on important social and political

issues. The rule sought by petitioners would allow

the arrest power to be used in precisely this fashion.

In Cranford, some of plaintiff’s preaching against

women dressing as “whores and prostitutes” was

directed specifically at Detective Helms wife. Cranford,

278 F.Supp.3d at 872 (“plaintiff pointed in the

direction of [Helms’] wife, who was sitting next to

him, and said ‘I’m talking to you and your family.’”).

Detective Helms testified that this particular part of

plaintiff’s speech nearly provoked him to violence, in

support of his argument that there was probable

cause to arrest plaintiff for breach of the peace. Id.at

872 n.8. Had Detective Helms retaliated violently, this

would have plainly violated plaintiff’s First Amendment

rights. But he did not retaliate violently, because as

the court observed, Detective Helms was able to

respond in a way “not available to the civilian

spectators” by forcibly placing plaintiff under arrest,

shutting down the articulation of religious views with

which he did not agree. Id. Because there was

probable cause, Helms could not face a First Amendment retaliation claim—even though he continued to

verbally spar with plaintiff after he said the words

that created probable cause, and even though there

was evidence in the record that Detective Helms and

Chief Kluttz targeted plaintiff for arrest based on

their knowledge of his prior preaching.

This Court should not countenance the establishment

of a legal framework that gives police officers the

ultimate trump card in a dispute with a person who

has an opposing viewpoint ranging from religious or

political views to a simple desire to protest concerning

any of society’s innumerable problems. The check of

a First Amendment retaliation claim must be

available, even in situations where there is probable

cause to arrest.

CONCLUSION

For the reasons stated above, this Court should

reject any mode of analysis for First Amendment

retaliatory arrest claims that permits official conduct

to go unchecked that is rooted in a desire to retaliate

against protected speech. If the presence of probable

cause alone defeats the existence of a First Amendment

retaliatory arrest claim under all circumstances,

arrests rooted in an effort to stifle protected speech

will be judicially unscrutinized and undisturbed.

Such a result risks impairing public confidence in

both law enforcement and the judiciary. At the same

time, it is irreconcilable with this Court’s duty to

protect First Amendment rights.

Dated October 9, 2018

Respectfully submitted,

ALLEN DICKERSON

INSTITUTE FOR FREE

SPEECH