Amicus Curiae Brief — Fane Lozman, Petitioner v. City of Riviera Beach, Florida

No. 17-21

d

IN THE

Supreme Court of the United States

FANE LOZMAN,

Petitioner,

—v.—

CITY OF RIVIERA BEACH, FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICUS CURIAE

INSTITUTE FOR FREE SPEECH

IN SUPPORT OF PETITIONER

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

CELIA BELMONTE

CAHILL GORDON & REINDEL LLP

80 Pine Street

New York, New York 10005

(212) 701-3000

fabrams@cahill.com

Counsel for Amicus Curiae Institute for Free Speech

i

TABLE OF CONTENTS

PAGE

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

1

INTRODUCTION: MT. HEALTHY AND

ITS PROGENY ........................................

2

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

5

I.

SIGNIFICANT DEPRIVATIONS

OF FIRST AMENDMENT RIGHTS

WILL OCCUR IF THE EXISTENCE

OF PROBABLE CAUSE FOR

AN ARREST BARS, UNDER

ALL CIRCUMSTANCES, ALL

RETALIATORY ARREST

CLAIMS ............................................

5

A. Ford v. City of Yakima,

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

7

B. Gullick v. Ott,

517 F. Supp. 2d 1063

(W.D. Wis. 2007) ........................

10

C. Marlin v. City of New York,

2016 WL 4939371

(S.D.N.Y. Sept. 7, 2016) ............

12

D. Cranford v. Kluttz,

2017 WL 4358761

(M.D.N.C. Sept. 30, 2017) .........

14

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PAGE

II. ABSENT THE SPECIFIC

CIRCUMSTANCES TRIGGERING

THE HARTMAN EXCEPTION,

MT. HEALTHY SHOULD BE

APPLIED TO PERMIT

VINDICATION OF CRITICAL

FIRST AMENDMENT

INTERESTS ......................................

17

A. Retaliatory Arrest Cases Do Not

Present Special Circumstances

Requiring Absence of Probable

Cause as a Proxy Inquiry..........

17

B. The Mt. Healthy Framework

Allows Courts to Determine

Whether State Action Was Taken

to Punish Protected Speech

Because of Its Communicative

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

19

C. 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 .............

21

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

25

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iii

Cases:

TABLE OF AUTHORITIES

City of Houston v. Hill,

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

PAGE

20

Cranford v. Kluttz,

2017 WL 4358761

(M.D.N.C. Sept. 30, 2017)..........14, 15, 17, 24

Devenpeck v. Alford,

543 U.S. 146 (2004) ................................

21

Fabrikant v. French,

691 F.3d 193 (2d Cir. 2012) ...................

13

Ford v. City of Yakima,

706 F.3d 1188

(9th Cir. 2013) ............................7, 8, 9, 17, 19

Gullick v. Ott,

517 F. Supp. 2d 1063

(W.D. Wis. 2007) ..................10, 11, 12, 20, 21

Hartman v. Moore,

547 U.S. 250 (2006) ........................3, 4, 17, 23

Hill v. Colorado,

530 U.S. 703 (2000) ....................................5, 6

Marlin v. City of New York,

2016 WL 4939371

(S.D.N.Y. Sept. 7, 2016) .............12, 13, 21, 22

McCullen v. Coakley,

134 S. Ct. 2518 (2014) ................................5, 6

Mt. Healthy City School District

Board of Education v. Doyle,

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

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PAGE

NAACP v. Claiborne Hardware Co.,

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

22

United States v. O’Brien,

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

22

Periodicals:

Linda Zhang, Retaliatory Arrests and the

First Amendment: The Chilling Effects

of Hartman v. Moore on Freedom of

Speech in the Age of Civilian Vigilance,

64 UCLA L. REV. 1328 (2017). ..............

23

Statutes and Regulations:

N.C. Gen. Stat. § 14-288.4(a)(2) ..................15, 16

R.C.N.Y. § l-03(a) ..........................................

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BRIEF OF INSTITUTE FOR FREE SPEECH

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

INTEREST OF AMICUS CURIAE1

The Institute for Free Speech, previously known

as the Center for Competitive Politics, 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 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 but officially disfavored

speech. It would imperil First Amendment

interests of the most significant nature if such

governmental misconduct, however egregious and

whatever the circumstances, were immunized

from judicial scrutiny whenever probable cause of

a violation of law may be said to have existed.

1

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.

Petitioner’s blanket consent to the filing of amicus briefs,

filed with the Court on December 19, 2017, and Respondent’s

written consent to the filing of this brief have been filed

concurrently with this brief.

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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 petitioner Fane Lozman.

INTRODUCTION: MT. HEALTHY

AND ITS PROGENY

The Court has long since articulated the

framework within which the central issue of this

case should be addressed. In Mt. Healthy City

School District Board of Education v. Doyle, 429

U.S. 274 (1977), 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. See id. at 285-287. That decision further

provides that 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.

Application of Mt. Healthy neither requires nor

permits lower courts to ignore the issue of

probable cause. Rather, a court deciding a case

governed by Mt. Healthy considers whether

probable cause existed as a factor in its holistic

assessment of the circumstances triggering the

arrest. The more plausible the submission that the

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cause of an arrest was official disapproval of

protected speech, the more likely it is that a First

Amendment retaliation claim will succeed. The

less plausible, the less likely a juridical

determination will follow that a First Amendment

claim will carry the day.

Mt. Healthy focuses on the issue of motivation.

What it does not do—what it rejects—is the notion

that so long as there was probable cause for an

arrest, it necessarily follows in all circumstances

that a retaliation claim must fail. That result is

all the more important in a nation awash in

criminal statutes, one in which, as the brief

submitted by the Institute for Justice in this case

points out, an average Florida driver could easily

be arrested for at least one moving violation every

time she drives. Br. of Amicus Curiae Institute for

Justice In Supp. of Pet. for Cert., 10-11.

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

Court deviated from the Mt. Healthy standard,

adding a no-probable-cause element to retaliatory

prosecution claims. In so holding, the Court

emphasized that its rationale for deviating from

the Mt. Healthy analysis was the “distinct problem

of causation” naturally present in all retaliatory

prosecution claims. Id. at 263. The causation

problem 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 because “the longstanding

presumption of regularity accorded to

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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,

the court must proceed on the basis that so long as

probable cause for the prosecution existed, the

underlying motivation of the state in commencing

the prosecution may not be challenged without

intruding into long-protected decisionmaking

areas. There is no such “legal obstacle,” as the

court in Hartman put it, to inquiries into whether

police or authorities who decide whether to arrest

people for any of the multitudes of potential

offenses that are embodied in legislation did so

with the motivation of suppressing or punishing

constitutionally protected speech. See id.

Mt. Healthy remains firmly established and is

routinely applied in cases involving claims of First

Amendment retaliation. Application of Mt.

Healthy does 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.

The core legal issue in this case is whether the Mt.

Healthy standard should be applied in retaliatory

arrest cases or whether the Hartman exception

should carry the day. We urge the former result

for reasons set forth in this submission.

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ARGUMENT

I.

SIGNIFICANT DEPRIVATIONS OF FIRST

AMENDMENT RIGHTS WILL OCCUR IF

THE EXISTENCE OF PROBABLE CAUSE

FOR AN ARREST BARS, UNDER ALL

CIRCUMSTANCES, ALL RETALIATORY

ARREST CLAIMS

The answer to the question posed above is, we

submit, most easily reached by reviewing a

number of cases already decided by this Court and

by various lower courts. The facts set forth in

those cases illustrate the magnitude of the speechdestructive impact of a rule that a First

Amendment retaliation claim may not be

juridically entertained when probable cause exists

of the violation of law by the party asserting the

claim. We set forth the facts of four recent cases—

one in a court of appeals and three in federal

district courts—in the pages that follow. Before

doing so, however, we consider the potential

impact of such a rule in two cases previously

heard and determined by this Court.

In both Hill v. Colorado, 530 U.S. 703 (2000)

and McCullen v. Coakley, 134 S. Ct. 2518 (2014)

this Court considered the constitutionality of state

statutes that established buffer zones in which

speech was significantly limited near abortion

clinics. Both cases involved facial challenges

under the First Amendment but both could, just

as well, have arisen in the context of First

Amendment retaliation claims. In the first case,

individuals who sought to engage in “‘sidewalk

counseling’” for the asserted purpose of educating,

counseling, persuading, or informing passersby

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“‘about abortion and abortion alternatives’”

challenged the constitutionality of the statute.

Hill, 530 U.S. at 708. In the second case,

individuals who sought “to engage women

approaching the clinics in . . . ‘sidewalk

counseling,’ which involves offering information

about alternatives to abortion” offered similar

challenges to the statute. McCullen, 134 S. Ct. at

2527. This Court affirmed the constitutionality of

the former statute and a dozen years later held

the latter statute unconstitutional.

We do not seek in this brief to relitigate the

constitutionality of either statute but simply to

put before the Court the question of how it would

have dealt with either case if the constitutionality

of both statutes had been affirmed and if pro-life

speakers had been able to demonstrate that while

they had spoken within the designated zones in a

matter inconsistent with the governing standard—

thus providing a basis for a determination of

probable cause of a violation—the statutes were,

in practice, only being enforced as to them because

of their views—thus providing a basis for

determinations of retaliation against them for the

exercise of their First Amendment rights. In fact,

the dissenting opinions of Justices Scalia and

Kennedy in Hill (530 U.S. at 741, 765) and the

concurring opinions of Justices Scalia and Alito in

McCullen (134 S. Ct. at 2541, 2548) urged that the

statutes at issue were viewpoint-based and thus

at odds with the First Amendment. Majorities on

the Court in the two cases concluded that the

statutes need not be so read. But had the antiabortion activists whose speech was limited by the

statutes at issue been victimized by retaliatory

arrests based on the content of their speech,

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adherence to the approach of the Eleventh Circuit

in the Lozman case would have required dismissal

of any First Amendment retaliation claims they

might have asserted, simply because of the

presence of probable cause of violations of those

laws.

We do not believe such result is consistent with

the First Amendment. But that is precisely what

would be required if the Eleventh Circuit ruling in

this case were affirmed. A review of lower court

cases leads to the identical conclusion. We turn to

those cases.

A. Ford v. City of Yakima, 706 F.3d 1188

(9th Cir. 2013)

In Ford v. City of Yakima, 706 F.3d 1188, 1190

(9th Cir. 2013), plaintiff Eddie Ford was listening

to music while driving when he noticed a police

car, driven by defendant Officer Ryan Urlacher,

following him.2 Ford stepped out of his car at a red

light and asked Officer Urlacher why he was

following him so closely. Id. Officer Urlacher told

Ford to get back into his car and “go.” Id.

Moments later, Officer Urlacher pulled Ford over.

Id. After parking, Ford emerged from his car

yelling and told Office Urlacher that he believed

the stop was racially motivated. Id. Officer

Urlacher warned Ford to stay in the car or he

would go to jail. Id. Ford heeded Officer Urlacher’s

warning. Id.

Officer Urlacher proceeded to tell another

officer, “‘I think I’m going to arrest [Ford] for [a]

2

The facts in the Ford case and others discussed in

this brief are set forth in the opinions and court filings cited.

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city noise ordinance violation right now. He might

only get a ticket if he cooperates. But with that

attitude, he’s going to get cuffed.’” Id. Officer

Urlacher next handcuffed Ford and made the

following statements to him: “‘Stop running the

mouth and listen’”; “‘If you talk over me, you are

going to go to jail, sir. Do not talk over me’”; “‘If

you cooperate, I may let you go with a ticket

today. If you run your mouth, I will book you in

jail for it. Yes, I will, and I will tow your car’”; “‘If

you cooperate and shut your mouth, I’ll give you a

ticket and you can go.’” Id. at 1190-1191. Ford

stopped yelling and proceeded to answer Officer

Urlacher’s questions with, “‘Uh-huh’” and “‘You do

what you want.’” Id. at 1191.

After Ford expressed concern about getting to

work, Officer Urlacher told him:

“‘Well that’s not going to happen if you

don’t—if you keep running your mouth.

Okay? If you have diarrhea of the mouth,

you will go to jail. If you cooperate with us

and treat us like human beings, we will

treat you like a human being. Do you

understand me?’” Id.

Officer Urlacher proceeded to tell a backup

officer, “‘I don’t know if I’m going to book him yet.

I’ll see if he’s going to shut up’” before telling

fellow defendant Lieutenant Nolan Wentz, “‘So

he’s under arrest for the city ordinance right now.

If he shuts up, I’ll let him go with a ticket.’” Id.

Wentz then advised taking Ford to jail; Ulracher

agreed.

While being driven by Officer Urlacher to the

booking facility, Ford invoked his right to free

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speech. In response, Officer Urlacher replied, in

part:

“‘You’re going to jail for numerous

reasons. The crime you’re going to jail for

is the city noise ordinance. A lot of times

we tend to cite and release people for that

or we give warnings. However . . . you

acted a fool . . . and we have discretion

whether we can book or release you. You

talked yourself—your mouth and your

attitude talked you into jail. Yes, it did.’”

Id. (emphasis in original).

Ultimately, the Ninth Circuit concluded that,

because “a person of ordinary firmness would be

chilled from future exercise of his First

Amendment rights if he were booked and taken to

jail in retaliation for his speech” that “a rational

jury could find that the officers deterred or chilled

the future exercise of Ford’s First Amendment

rights.” Id. at 1194. The court then determined

that “the facts establish[ed] that the officers’

alleged conduct violated [Ford’s] right to be free

from police action motivated by retaliatory

animus, even if probable cause existed for that

action.” Id. at 1195. After finding that the

defendant officers were not entitled to qualified

immunity, the court reversed the district court’s

granting of summary judgment and allowed Ford’s

claim to proceed to trial because he “put forth

facts sufficient to allege a violation of his clearly

established First Amendment right to be free from

police action motivated by retaliatory animus,

even if probable cause existed for that action.” Id.

at 1196.

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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), plaintiff Thomas Gullick sued

defendant deputy sheriff Terry Ott in his

individual capacity for issuing him a citation in

retaliation for 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 strong that even

before the incident giving rise to this case,

another officer warned Gullick to “look out for”

Ott. Id. at 1066. In this warning, the other officer

said 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 started

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

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description Ott noted that the “Richards for

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

(Ott’s supervisor, however, 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.3 Id.

After his conversation, Ott returned to Gullick,

issued him a citation for public urination, and

asked whether he could search his car for antiRichards fliers. 4 Id. Gullick consented, and Ott

searched Gullick’s car to no avail. Id. All in all,

the stop lasted a little over one hour. Id.

The court analyzed the absence of probable

cause as one factor in its larger inquiry into

whether the arrest was motivated by retaliatory

animus, in accordance with the Mt. Healthy

3

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.

4

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.

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framework. The court found that 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. Marlin v. City of New York, 2016 WL

4939371 (S.D.N.Y. Sept. 7, 2016)

In Marlin v. City of New York, 2016 WL

4939371, at *2 (S.D.N.Y. Sept. 7, 2016), plaintiff

Jason Marlin participated in the Occupy Wall

Street demonstrations in New York City’s Union

Square. According to Marlin, he was aware that

the park closed at midnight because fellow

protestors had “mentioned it” to him. Id. at *2.

However, he claimed that he did not believe that

the part of Union Square in which he stood that

night closed at midnight because it was not part of

the park; plaintiff asserted that he was standing

outside the park entrance in a public right-of-way.

Id. at *2, *11.

Marlin alleged that he was arrested because

police officers believed he was assisting another

protestor who criticized the police. A female

protestor standing next to Marlin was arrested

after yelling, “‘You should be ashamed of

yourselves’” at the officers. Id. at *3. Seconds after

the female protestor’s arrest, one of the defendant

officers alleged that Marlin was “helping” her and

ordered his arrest. Id. Police affidavits maintained

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that Marlin interfered with an ongoing arrest, and

that he resisted arrest by refusing to place his

arms behind his back and falling to the ground.

Id. at *4.

Marlin had been charged with resisting arrest

and obstruction of governmental administration.

Id. The district court’s analysis of his First

Amendment retaliation claim focused entirely on

the presence of probable cause for his commission

of a different offense—violation of New York City

park rules—because in the Second Circuit, “[t]he

existence of probable cause will defeat a First

Amendment claim, ‘premised on the allegation

that defendants prosecuted a plaintiff out of a

retaliatory move.’” Id. at *14 (quoting Fabrikant v.

French, 691 F.3d 193, 215 (2d Cir. 2012)). In its

prior analysis of plaintiff’s claim for false arrest,

the court had already found that the defendant

officers had probable cause to arrest Marlin for

violating R.C.N.Y. § l-03(a), which prohibits being

in a city park after it is closed to the public. Id. at

*9-*10. Reasoning that plaintiff was at least near

“an entrance to the park” and that thus “arguable

probable cause” existed for this violation, the

court held that it saw no need to decide whether

there was probable cause to arrest Marlin for a

violation of any of the other park rules at issue or

for the charges actually cited at the time of his

arrest. Id. at *10-*11. So long as probable cause

existed for any violation, the court concluded, the

question was settled and no retaliation claim

could survive. Id. at *10- *11, *14.

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D. Cranford v. Kluttz, 2017 WL 4358761

(M.D.N.C. Sept. 30, 2017)

In Cranford v. Kluttz, 2017 WL 4358761, at *1

(M.D.N.C. Sept. 30, 2017), plaintiff Brian D.

Cranford, a Christian “street preacher” who

traveled his local area professing his

interpretation of the Christian Bible on public

streets, began preaching at the “Farmers’ Day

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

and other local vendors. Defendant local police

Chief Eddie Kluttz reassigned defendant 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. 15cv-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 elected to

stand near the boundary of the festival grounds,

and preach to passersby, focusing on the topic that

women who did not dress modestly were “whores

and prostitutes.” 2017 WL 4358761, at *17-*19.

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 *2.

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

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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); 2017 WL 4358761, at *20.

Cranford continued to preach on the topic 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 *3, *19.

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 *3 (internal citations omitted).

Cranford filed multiple claims relating to his

arrest, including a claim for First Amendment

retaliation. In considering other claims, the court

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found sufficient probable cause to confer qualified

immunity on the defendants for a possible Fourth

Amendment violation. Id. at *17-*19. 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 *17. The court found probable

cause to arrest on the basis that Cranford was

ultimately convicted of disorderly conduct by a

state court. Id.

The court 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,” id. at *21, Cranford could not state a

claim against Detective Helms for retaliatory

arrest due to the existence of probable cause.

*****

The above cases, one from a court of appeals and

three others from district courts, illustrate not

only the wide range of circumstances in which

claims of retaliatory arrests occur, but the vice of

a per se rule barring all First Amendment

retaliation claims so long as probable cause for an

arrest existed. Marlin may have had a more

attractive claim than Ford, Cranford than Gullick,

but the enforcement of a rigid legal bar to the

assertion of a retaliatory arrest claim in all four

cases is indefensible.

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II. ABSENT THE SPECIFIC CIRCUMSTANCES

TRIGGERING THE HARTMAN EXCEPTION,

MT. HEALTHY SHOULD BE APPLIED TO

PERMIT VINDICATION OF CRITICAL

FIRST AMENDMENT INTERESTS

The above cases also reveal that the framework

articulated by this Court in Mt. 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 Mt. 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. R e t a l i a t o r y A r r e s t C a s e s D o N o t

Present Special Circumstances

Requiring Absence of Probable Cause

as a Proxy Inquiry

Most retaliatory arrest cases do not need the

“gap-filling” analysis required in Hartman

because, as illustrated by the cases above, the

arresting officer and the government official with

purported animus are one and the same. See, e.g.,

Ford v. City of Yakima, supra; Cranford v. Kluttz,

supra. Like the “ordinary retaliation claims” that

the Court differentiated retaliatory prosecution

claims from in Hartman, in these types of claims

“the government agent allegedly harboring the

animus is also the individual allegedly taking the

adverse action.” Hartman, 547 U.S. at 259. As the

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government official harboring the animus is the

executor of the arrest, there is no need to inquire

into absence of probable cause to determine his

motivation via a proxy analysis—his motivation

can be examined directly.

The instant case, where another official

instructed the arresting officer to effect Mr.

Lozman’s detention, may seem to present a

different situation that involves the need to fill a

gap because multiple actors are involved.

However, in this and similar situations involving

multiple government officials participating in and

influencing the decision to arrest, unlike in a

retaliatory prosecution claim, the court may still

consider the actual motivation of the arresting

officer. The “absence of probable cause” inquiry is

not needed as a proxy where the court can inquire

into the motivation of the arresting officer. The

court can directly examine whether the

governmental official making the arrest was

substantially influenced by his or another

government official’s desire to retaliate against

protected speech with which they disagreed. In

retaliatory arrest cases, requiring plaintiff to

negate the existence of probable cause fills no

important function, and only serves to cut off the

court from inquiring into whether the arrest was

motivated by the communicative impact of

protected speech.

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B. The Mt. Healthy Framework Allows

Courts to Determine Whether State

Action Was Taken to Punish Protected

Speech Because of Its Communicative

Impact

The burden-shifting framework considers

absence of probable cause as an element of the

th ird Mt . Healthy f ac tor : whether p l ai nti f f ’ s

constitutionally protected activity motivated

defendant’s adverse action. This allows courts to

consider absence of probable cause as an element

of the inquiry, together with the officer’s

motivation, in order to determine the true

motivation of the arrest. Where the court is not

bound to search for any possible probable cause,

and terminate its inquiry if probable cause is

found, it is able better to assess whether the arrest

was retaliatory. Permitting the court to consider

absence of probable cause as just one element of

the inquiry into the officer’s motivation allows the

court to more accurately assess whether the speech

that triggered the arrest was protected or

unprotected speech, and whether the arrest was

based on the speech’s message. Ford is illustrative

of the benefits of formulating the inquiry in this

fashion. There, the arresting officer explicitly told

Ford that the real reason for his arrest was his

argumentative attitude—not his violation of the

noise ordinance. Ford was plausibly arrested not

for his unprotected speech that triggered the

arrest, but rather based on his later, protected

speech, due to its message. Because the court did

not have to stop its analysis once it found probable

cause, it was able to determine that a jury could

find that Ford was arrested for an impermissible

retaliatory motive against his protected speech.

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Gullick too shows that the Mt. Healthy

framework allows the court to determine whether

the arrest was actually triggered by retaliatory

animus towards plaintiff’s protected speech.

Because the court understood that it was

permitted to consider the existence of probable

cause to arrest as part of its larger inquiry into

the officer’s motivation for arresting, it was able

to determine that an officer who had

demonstrated animus towards Gullick for his

political speech and who had to look up the

statute that was the basis for his charge could in

fact have had a retaliatory motive

Gullick also demonstrates how examining the

existence of probable cause as part of the larger

inquiry into the arresting officer’s motivation can

reveal that the officer exercised discretion on a

charge wholly unrelated to speech because of the

arrestee’s protected speech in a separate incident.

Gullick pleaded facts supporting the proposition

that the arresting officer was upset with his

protected political speech prior to the incident for

which he was arrested. In fact, other law

enforcement officers had warned Gullick to look

out for the officer who arrested him because of

their political dispute. He was then arrested for

public urination, a charge wholly unrelated to

speech, which the court noted was very rarely

enforced. By considering probable cause as part of

the inquiry into the motivation to arrest, the court

was able to take into account whether the

discretionary decision to arrest was based on his

protected speech. This Court has repeatedly found

unconstitutional laws that provide the police with

“unfettered discretion to arrest individuals for

words or conduct that annoy or offend them,” City

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of Houston v. Hill, 482 U.S. 451, 465 (1987). The

Gullick ruling was consistent with that

determination.

C. 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

The First Amendment is not easily vindicated in

circuits where the courts consider absence of

probable cause not as a factor in its holistic

assessment of the circumstances motivating an

arrest, but as a single determinative element on

which plaintiff’s retaliation claim turns. In these

circuits, the court may not even inquire into

whether the arresting officer was at all influenced

by the speaker’s message, so long as probable

cause exists for any reason—even a reason other

than the charges cited at the time of arrest. See,

e.g., Marlin, 2016 WL 4939371. In determining

whether probable cause exists for an arrest, courts

evaluate whether the facts known by the arresting

officer at the time of the arrest objectively

provided probable cause to arrest. Devenpeck v.

Alford, 543 U.S. 146, 153 (2004). Whether

probable cause existed for the charge actually

invoked by the arresting officer at the time of the

arrest is irrelevant. Id. at 153-54. Once the court

finds probable cause, the inquiry ceases, and the

First Amendment retaliation claim is defeated,

without the court even looking at whether the

plaintiff had engaged in speech possibly deserving

of constitutional protection, or if the officer took

action based on the message plaintiff conveyed.

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See Marlin, 2016 WL 4939371, at *14. Such a

cursory inquiry runs contrary to this Court’s First

Amendment jurisprudence.

The First Amendment demands that courts

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 nonviolent, 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.”).

As the above cases illustrate, for courts to

analyze a cause of action for violation of First

Amendment rights without even engaging in any

of the most fundamental and basic inquiries this

Court has developed to define the contours of that

right is to slam the door on the First Amendment

altogether.

In Marlin, the court did not even consider

whether a protestor exercising his First

Amendment rights in public, arguably on the

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public sidewalk, was engaging in protected speech.

It did not have to—indeed, was not permitted to—

resolve the dispute between the protestors’ version

of events and the police officers’ version, nor

whether there was probable cause for the

violations cited at the time of plaintiff’s arrest.

The court stopped considering the First

Amendment retaliation claim once it concluded

that there was only arguable probable cause that

plaintiff broke a different law than the police cited

at the time of his arrest. Protection of First

Amendment rights requires greater judicial

attention—especially as the increased prevalence

of citizen recordings of the police provides courts

with evidence of what truly occurred. Cf. Linda

Zhang, Retaliatory Arrests and the First

Amendment: The Chilling Effects of Hartman v.

Moore on Freedom of Speech in the Age of Civilian

Vigilance, 64 UCLA L. REV. 1328, 1363 (2017).

Cases such as Marlin demonstrate that in the

circuits that bar retaliation claims unless

probable cause is negated, the pro-life activists in

the hypothetical we posited at the very beginning

of this discussion would have no recourse to

pursue such claims. If a clash of pro-choice and

pro-life activists sparked a riot, the police would

be free to arrest only the pro-life activists because

of the presence of probable cause. Even if an

officer acknowledged to all the pro-life activists

that he rounded up, “I’m arresting only pro-life

people because I think you’re wrong,” or “I’m

arresting all you pro-life people because it’s

always you that start the trouble,” the arrest

could not be considered retaliatory so long as

probable cause for the violation of law existed.

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Cranford highlights a more nuanced problem

presented by requiring the negation of probable

cause as a prerequisite to asserting a retaliation

claim. Since the court must tightly focus on

whether probable cause existed at the point

plaintiff was arrested, it may not consider

whether the arresting officer’s retaliatory animus

shaped the entire scenario leading up to the

arrest. In Cranford, the court confronted a

situation where another court had already

determined that Cranford’s professions of his

religious beliefs did ultimately cross the line into

unprotected “fighting words.” However, Cranford’s

unprotected statements were uttered after

Cranford had already been targeted by and had

verbal exchanges with law enforcement. Chief

Kluttz had told Detective Helms to target

Cranford for arrest. Detective Helms removed

Cranford from the festival grounds, and had

issued his own judgment on the content and

viewpoint of Cranford’s speech, telling him it was

“disrespectful.” Presumably, the speech that was

“disrespectful” was protected speech that did not

violate the disorderly conduct statute, as

Detective Helms did not yet arrest Cranford at

that point. Despite the potentially significant facts

suggesting retaliatory motive, the court was not

permitted to even consider whether Detective

Helms and Chief Kluttz targeted Cranford based

on their knowledge of his prior preaching and

provoked him into ultimately violating the

disorderly conduct statute, for, in the Fourth

Circuit, once probable cause to arrest for any

reason is found, the court may inquire no further.

That is precisely why a rule imposing the far more

holistic Mt. Healthy approach is needed.

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CONCLUSION

For the reasons stated above, the Institute for

Free Speech respectfully submits that this Court

should reject any mode of analysis for First

Amendment retaliatory arrest claims that ignores

whether protected speech actually was or was not

targeted based on its message. 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 become judicially

unscrutinized and undisturbed throughout the

nation. 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.

December 29, 2017

ALLEN DICKERSON

INSTITUTE FOR

FREE SPEECH

124 South West Street

Suite 201

Alexandria, VA 22314

(703) 894-6800

adickerson@ifs.org

Respectfully submitted,

FLOYD ABRAMS

Counsel of Record

KATHLEEN E. FARLEY

CELIA BELMONTE

CAHILL GORDON

& REINDEL LLP

80 Pine Street

New York, NY 10005

(212) 701-3000

fabrams@cahill.com

Counsel for Amicus Curiae

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