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

Supreme Court briefJan 29, 2018

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No. 17-21

IN THE

Supreme Court of the United States

————

FANE LOZMAN,

Petitioner,

THE CITY OF RIVIERA BEACH, FLORIDA,

————

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF OF NATIONAL ASSOCIATION OF

COUNTIES, NATIONAL LEAGUE OF CITIES,

UNITED STATES CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

————

LISA E. SORONEN

STATE AND LOCAL

LEGAL CENTER

444 North Capitol Street, NW

Ste. 515

Washington, D.C. 20001

(202) 434-4845

lsoronen@sso.org

SEAN R. GALLAGHER

BENNETT L. COHEN

Counsel of Record

BRITTON ST. ONGE

POLSINELLI PC

1401 Lawrence Street

Ste. 2300

Denver, CO 80202

(303) 572-9300

bcohen@polsinelli.com

Counsel for Amici Curiae

January 29, 2018

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

TABLE OF CONTENTS

Page

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

iii

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

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

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

II.

Adopting Lozman’s formulation for

retaliatory-arrest claims will hinder

the operations of state and local

governments ..............................................

A. Lozman’s proposed rule will make it

more difficult to maintain safety and

order at local-government meetings,

public protests, and political rallies....

B. Alleging Monell liability is easy to

do, and Twombly and Iqbal offer

inadequate protection from frivolous

lawsuits ................................................

C. Frivolous claims for retaliatory arrest

impose reputational harms, which

make recruiting and retaining police

officers more difficult...........................

State and local governments respect the

importance of their citizenry’s freedom of

speech and afford meaningful protections

against its infringement ...........................

(i)

TABLE OF CONTENTS—Continued

Page

A. The First Amendment is not the

sole bulwark against retaliatory

arrests; the 50 State Constitutions

also protect the right of citizens to

speak freely without the threat of

retaliation ............................................

B. Internal disciplinary measures supply additional protection against

retaliatory arrests ...............................

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

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ...................................

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) ...................................

Beach v. Shanley,

465 N.E.2d 304 (N.Y. 1984) ......................

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ...................................

Bock v. Westminster Mall Co.,

819 P.2d 55 (Colo. 1991) ...........................

Brady v. Maryland,

373 U.S. 83 (1963) .....................................

8, 9

Connick v. Myers,

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

4, 6

Connick v. Thompson,

563 U.S. 51 (2011) .....................................

Dublirer v. 2000 Linwood Ave.

Owners, Inc.,

103 A.3d 249 (N.J. 2014) ..........................

Fashion Valley Mall, LLC v. NLRB,

172 P.3d 742 (Cal. 2007) ...........................

Haley v. City of Boston,

657 F.3d 39 (1st Cir. 2011) .......................

Hoefling v. City of Miami,

811 F.3d 1271 (11th Cir. 2016) .................

Kelo v. City of New London,

545 U.S. 469 (2005) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Monell v. Dep’t of Social Services

of the City of New York,

436 U.S. 658 (1978) ...................................

8, 9

Mountain States Tel. & Tel. Co.

v. Arizona Corp. Comm’n,

773 P.2d 455 (Ariz. 1989) .........................

N.Y. Times Co. v. Sullivan,

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

5, 6

NAACP v. Claiborne Hardware Co.,

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

Nat’l Archives & Records

Admin. v. Favish,

541 U.S. 157 (2004) ...................................

New York v. Quarles,

467 U.S. 649 (1984) ...................................

Oregon v. Hass,

420 U.S. 714 (1975) ...................................

Owens v. Baltimore City

State’s Attorney’s Office,

767 F.3d 379 (4th Cir. 2014) .....................

8, 9

People ex rel. Arcara v.

Cloud Books, Inc.,

503 N.E.2d 492 (N.Y. 1986) ......................

PruneYard Shopping Center

v. Robins,

447 U.S. 74 (1980) .....................................

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Reichle v. Howards,

566 U.S. 658 (2011) ...................................

Robins v. PruneYard Shopping Ctr.,

592 P.2d 341, 347 (Cal. 1979),

aff’d, 447 U.S. 74 (1980) ...........................

Roman v. Trustees of Tufts Coll.,

964 N.E.2d 331 (Mass. 2012) ....................

State v. Schmid,

423 A.2d 615 (N.J. 1980) ..........................

Wong Sun v. United States,

371 U.S. 471 (1963) ...................................

CONSTITUTION

U.S. Const. amend. I ...................................passim

U.S. Const. amend. V ...................................

U.S. Const. amend. XIV ...............................

Ala. Const. art. 1, § 4 ....................................

Alaska Const. art. I, § 5 ...............................

Ariz. Const. art. 2, § 6 .................................. 11, 12

Ark. Const. art. 2, § 6 ...................................

Cal. Const. art. 1, § 2(a) ...............................

Colo. Const. art. II, § 10 ............................... 11, 14

Conn. Const. art. I, § 4 .................................

Del. Const. art. I, § 5 ....................................

Fla. Const. art. I, § 4 ....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Ga. Const. art. I, § 1, ¶ 5 ..............................

Haw. Const. art. I, § 4 .................................

Idaho Const. art. I, § 9 .................................

Ill. Const. art. I, § 4 ......................................

Ind. Const. art. 1, § 9 ....................................

Iowa Const. art. I, § 7 ...................................

Kan. Const. Bill of Rights § 11 .....................

Ky. Const. § 8 ................................................

La. Const. art. I, § 7......................................

Me. Const. art. I, § 4 ..................................... 11, 12

Md. Const. Declaration of Rights, art. 10 ....

Mass. Const. Pt. 1, art. XXI .........................

Mo. Const. art. I, § 8 .....................................

Mont. Const. art. II, § 7 ................................

Neb. Const. art. I-5 .......................................

Nev. Const. art. 1, § 9 ...................................

N.H. Const. Pt. I, art. 22 .............................. 11, 12

N.J. Const. art. I, § 6 ....................................

N.M. Const. art. II, § 17 ...............................

N.Y. Const. art. I, § 8....................................

N.C. Const. art. I, § 14 .................................

N.D. Const. art. I, § 4 ...................................

Ohio Const. art. I, § 11 .................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Okla. Const. § II-22 ......................................

Or. Const. art. I, § 8...................................... 11, 12

Pa. Const. art. I, § 7......................................

R.I. Const. art. I, § 21 ................................... 11, 12

S.C. Const. art. I, § 2 ....................................

S.D. Const. art. VI, § 5 .................................

Tenn. Const. art. 1, § 19 ...............................

Tex. Const. art. I, § 8 ....................................

Utah Const. art. I, § 15 ................................

Vt. Const. ch. I, art. 13 .................................

Va. Const. art. I, § 12 ................................... 11, 12

Wash. Const. art. I, § 5 .................................

W. Va. Const. art. III, § 7 .............................

Wis. Const. art. I, § 3 ....................................

Wyo. Const. art. I, § 20 .................................

STATUTES

42 U.S.C. § 1983 ......................................... 8, 9, 10

Cal. Penal Code § 832.5(a)(1) .......................

RULES

Fed. R. Civ. P. 12(b)(6) .................................

viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Chris Suarez, Three arrested as councilors

vote to shroud Confederate statues at

meeting overwhelmed by anger, The Daily

Progress (Aug. 22, 2017), available at

https://goo.gl/3eVTQg ...............................

City of Chicago, Ill., Civilian Office of Police

Accountability, http://www.chicagocopa.

org (last visited Jan. 25, 2018) .................

City of St. Louis, Mo., How To File a Complaint Against a St Louis Metropolitan

Police Officer, Civilian Oversight Board,

available at https://goo.gl/gCeRUF (last

visited Jan. 25, 2018) ................................

Greg Johnson, 6 dead in shootings at

Kirkwood City Hall, St. Louis PostDispatch (Feb. 7, 2008), available at

https://goo.gl/Dr2UVd ...............................

Martin Kaste, Police Struggle To Balance

Public Safety With Free Speech During

Protests, National Public Radio (Aug.

26, 2017), available at https://goo.gl/

An3rUD .....................................................

Matthew Bramlett, City council meeting

draws

belligerence,

disagreements,

Claremont Courier (Jan. 26, 2017), available at https://goo.gl/QsifC8......................

Meghan Keneally, The History of Violence

on Presidential Campaign Trails, ABC

News (Mar. 14, 2016), available at

https://goo.gl/j91D3e .................................

TABLE OF AUTHORITIES—Continued

Page(s)

Rick Neale, Emotions high at Palm Bay

City Council Meeting, Florida Today

(May 5, 2017), available at https://goo.gl/

PKEEBg ....................................................

Scott Schwebke, Anti-Trump protesters

clash with Santa Ana police, demonstrate

at three O.C. campuses, Orange County

https://goo.gl/hr5Vaz .................................

Sean Curtis, 4 reasons why police departments are struggling to fill their ranks,

Policeone.com (Oct. 12, 2017), available

at https://goo.gl/5KLKjx ............................

U.S. Dep’t of Justice – Civil Rights

Division, Investigation of the Ferguson

Police Department (Mar. 4, 2005),

available at https://goo.gl/bMmpT3..........

INTEREST OF THE AMICI CURIAE1

The National Association of Counties (“NACo”) is

the only national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the nation’s 3,069

counties through advocacy, education, and research.

The National League of Cities (“NLC”) is dedicated

to helping city leaders build better communities.

NLC is a resource and advocate for 19,000 cities,

towns, and villages, representing more than 218 million

Americans.

The U.S. Conference of Mayors (“USCM”), founded

in 1932, is the official nonpartisan organization of all

United States cities with a population of more than

30,000 people, which includes over 1,400 cities. Each

city is represented in USCM by its chief elected

official, the mayor.

The International City/County Management Association (“ICMA”) is a non-profit professional and

educational organization consisting of more than 11,000

appointed chief executives and assistants serving

cities, counties, towns, and regional entities. ICMA’s

mission is to create excellence in local governance by

advocating and developing the professional management of local governments throughout the world.

The parties have consented to the filing of this brief.

Petitioner has filed a blanket consent to the filing of amicus briefs

in this case. Counsel of record for all parties received notice at

least 10 days prior to the due date of amici curiae’s intention to

file this brief. No counsel for a party authored this brief in whole

or in part, and no counsel for a party (nor a party itself) made

a monetary contribution intended to fund the preparation or

submission of this brief. No person other than amici or their

counsel made a monetary contribution to its preparation or

submission.

The International Municipal Lawyers Association

(“IMLA”) has been an advocate and resource for local

government attorneys since 1935. Owned solely by

its more than 2,500 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters. IMLA’s mission

is to advance the responsible development of municipal law through education and advocacy by providing

the collective viewpoint of local governments around

the country on legal issues before the Supreme Court

of the United States, the United States Courts of

Appeals, and State supreme and appellate courts.

Amici curiae are national organizations representing elected and appointed officials of state and local

governments. Members of these organizations employ

law enforcement officers who keep the peace and

protect public order and safety. State and local law

enforcement officers frequently encounter situations

similar to the one at issue in this case.

SUMMARY OF THE ARGUMENT

The Court should hold that pleading and proving the

absence of probable cause is a required element of all

First Amendment retaliatory-arrest claims. Adopting

Fane Lozman’s contrary rule will have significant

negative effects on state and local governments. It will

make it more difficult to maintain order and safety

at local-government meetings, public protests and

demonstrations, and political rallies. Also, because

alleging municipal liability is a fairly easy thing to do,

local governments, in addition to their officers, will

face an increased likelihood of defending against

meritless lawsuits based on lawful arrests. Courts will

be less able to weed such claims out early in the

case. Lastly, because Lozman’s proposed rule will

lead to more lawsuits (as virtually anyone will be

able to manufacture a claim simply by speaking before

an arrest), the rule will make recruiting and retaining

police officers more difficult.

Additional protections from retaliatory arrests

exist besides the First Amendment. The 50 State

constitutions offer meaningful protections against the

abridgment of the freedom of speech. Nothing prevents plaintiffs from pressing their rights under these

State constitutions. State courts can choose to adopt

a greater degree of protection to guard against retaliatory arrests.

In addition to the State constitutions, internal

disciplinary measures within state and local police

departments offer meaningful remedies for true victims of retaliation at the hands of untrained (or

untrainable, problem) officers. These measures can

lead to systemic change.

ARGUMENT

Amici fully support Respondent’s persuasive argument that the existence of probable cause should defeat

a retaliatory-arrest claim as a matter of law. Respondent’s proposed rule is consistent with the constitutional

principles at stake, closely tracks general tort principles,

accommodates the distinctive features of retaliatoryarrest claims, and is consonant with First Amendment

values. Moreover, a no-probable-cause rule gives law

enforcement clear guidance in the field, something

this Court prefers when crafting constitutional rules

to govern police conduct. See Atwater v. City of Lago

Vista, 532 U.S. 318, 347 (2001). This rule also will

better weed out frivolous retaliatory-arrest claims early

on—or better yet, dissuade plaintiffs from asserting

meritless claims at all. The Court should embrace it.

I. Adopting Lozman’s formulation

for

retaliatory-arrest claims will hinder the

operations of state and local governments.

Adopting Lozman’s contrary rule will significantly

affect the ability of state and local law enforcement to

perform their protective functions. Law enforcement

officers face unfamiliar and potentially life-threatening situations every day. Similar to the decision

whether to use force when making an arrest, the

decision to make an arrest in the first place—determining whether probable cause exists—is made “not

in the courtroom but at the scene,” often in a “split

second.” Wong Sun v. United States, 371 U.S. 471, 499

(1963) (Clark, J., dissenting). An officer must respond

to a situation he or she encounters then and there,

without the luxury of consulting an attorney beforehand to determine whether an arrest will later embroil

the officer in a lawsuit. Where an officer has probable

cause, the decision to arrest is not one this Court

should force an officer to second-guess on pain of

personal liability simply because a judge or jury, years

later, may see the situation differently. The stakes are

too high to impose such a burden on officers.

A. Lozman’s proposed rule will make it

more difficult to maintain safety and

order at local-government meetings,

public protests, and political rallies.

A city council meeting is one of the best places to

observe vigorous exercise of the right of free speech.

This Court “has frequently reaffirmed that speech

on public issues occupies the ‘highest rung of the

hierarchy of First Amendment values,’ and is entitled

to special protection.” Connick v. Myers, 461 U.S. 138,

145 (1983) (quoting NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 913 (1982)). That is especially true

when the public issue pertains to “the stewardship of

public officials.” N.Y. Times Co. v. Sullivan, 376 U.S.

254, 274–75 (1964). Almost nowhere else is the

exercise of that “fundamental” right, id., more on

display than at local-government meetings, where the

public is invited to address members of local government directly.

For better or worse, however, emotions can run high

at public meetings. See Rick Neale, Emotions high at

Palm Bay City Council Meeting, Florida Today (May

5, 2017).2 See also Matthew Bramlett, City council

meeting draws belligerence, disagreements, Claremont

Courier (Jan. 26, 2017).3 Emotions can lead to chaos

and violence in some cases. See Chris Suarez, Three

arrested as councilors vote to shroud Confederate

statues at meeting overwhelmed by anger, The Daily

Progress (Aug. 22, 2017).4 And at times these strong

emotions can lead to tragedy. See Greg Johnson, 6

dead in shootings at Kirkwood City Hall, St. Louis

Post-Dispatch (Feb. 7, 2008).5 Maintaining order at

these meetings can unintentionally abridge speech, as

where a citizen must be removed because he or she is

causing a disturbance.

Protests and demonstrations present similar

difficulties for law enforcement. Like speech at localgovernment meetings, protests almost always target

public issues and nearly everything a participant says

Available at https://goo.gl/PKEEBg.

Available at https://goo.gl/QsifC8.

Available at https://goo.gl/3eVTQg.

Available at https://goo.gl/Dr2UVd.

will qualify as protected speech. The chaos that

unfolded in Charlottesville, Virginia just last year is a

painful reminder that emotions at demonstrations

can lead to violence and death, at times with little or

no warning. See also Scott Schwebke, Anti-Trump

protesters clash with Santa Ana police, demonstrate at

three O.C. campuses, Orange County Register (Nov.

11, 2016).6 Police already struggle at times to strike

an appropriate balance between liberty and safety,

even without the prospect of a lawsuit. See Martin

Kaste, Police Struggle To Balance Public Safety With

Free Speech During Protests, National Public Radio

(Aug. 26, 2017).7 To protect the right of peaceful

protesters to speak, it is imperative that trained law

enforcement be permitted the breathing space to

perform their duties without fear of a lawsuit if they

decide to arrest when they have probable cause to do

so. See Reichle v. Howards, 566 U.S. 658, 668 (2011).

Political rallies pose perhaps the greatest difficulties for law enforcement. Free-speech rights reach

their zenith at rallies because the speech involves

matters of public concern, in particular “the stewardship of public officials.” N.Y. Times, 376 U.S. at 274–

75; see Connick, 461 U.S. at 145; R.A.V. v. City of St.

Paul, 505 U.S. 377, 429 (1992) (noting that “First

Amendment protection is at its zenith” when government regulates “political speech or the expression of

editorial opinion on matters of public importance”

(cleaned up)). Officers at such rallies are exposed to

high concentrations of core political speech, as people

feel free to speak their minds and are encouraged to do

so. Yet rallies can also pose serious safety concerns

Available at https://goo.gl/hr5Vaz.

Available at https://goo.gl/An3rUD.

because of the emotions they can stir. See Meghan

Keneally, The History of Violence on Presidential

Campaign Trails, ABC News (Mar. 14, 2016).8

An officer who, based on instinct, training, and

(most importantly) probable cause, decides it is appropriate to arrest someone should not face personal

liability for that decision simply because the arrestee

thinks he or she was arrested for his or her speech.

Lozman’s proposed rule may cause officers to secondguess themselves in tense and rapidly evolving

situations arising at these and other public venues.

Under Lozman’s proposal, officers would have to stop

to ask themselves whether they truly are making

an arrest based on a concern that a crime has been or

is about to be committed, or instead whether their

personal views of the arrestee’s speech are motivating

the decision in some way. It may be difficult for a court

or jury, given time for reflection and deliberation after

hearing all of the evidence at a trial, to sort out what

motivated the officer’s decision. How much more

difficult will it be for the officer to sort that out in the

moment they decide to arrest someone? See New York

v. Quarles, 467 U.S. 649, 656 (1984) (noting the

“kaleidoscopic situation[s]” officers face, where “spontaneity” is “necessarily the order of the day” and officers

must respond “out of a host of different, instinctive,

and largely unverifiable motives”). And even if the

speech is not personally motivating the officer’s arresting decision, given the arrest’s temporal proximity to

the speech, it is easy for an arrestee to perceive the

speech as motivating the arrest. Officers may have

difficulty rebutting the inference that speech caused

the arrest.

Available at https://goo.gl/j91D3e.

B. Alleging Monell liability is easy to do,

and Twombly and Iqbal offer inadequate protection from frivolous lawsuits.

Adopting Lozman’s rule will make it easier to state

frivolous claims not only against officers for retaliatory arrest but against local governments as well,

based on those arrests. That is because Monell claims,

generally speaking, are relatively simple to state,

even under the pleading requirements of Iqbal and

Twombly.

“Plaintiffs who seek to impose liability on local governments under § 1983 must prove that ‘action pursuant

to official municipal policy’ caused their injury.”

Connick v. Thompson, 563 U.S. 51, 60–61 (2011). An

“official municipal policy” can be made through “the

decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and

widespread as to practically have the force of law.” Id.

at 61.

If a claim against the officer survives a Rule 12(b)(6)

motion, chances are high that a Monell claim against

the officer’s employer will as well, given the relative

ease in asserting one. Consider, for example, the allegations in Owens v. Baltimore City State’s Attorney’s

Office, 767 F.3d 379 (4th Cir. 2014), which the Fourth

Circuit said were enough for the Monell claim to

proceed. James Owens sued a number of city officers

for withholding Brady material. He also asserted a

§ 1983 claim against the Baltimore City Police

Department. The district court found the allegations

against the police department wanting. The Fourth

Circuit disagreed and reinstated the claim. It began

by contrasting the difficulty in prevailing on a Monell

claim, which “is no easy task,” with “simply alleging

such a claim,” which is “easier.” Id. at 402–03. To that

end, the court found that Owens had sufficiently

pleaded that the police department “maintained a

custom, policy, and/or practice” of condoning its officers’

conduct in knowingly, consciously, and repeatedly

withholding and suppressing exculpatory evidence,

because Owens had alleged the existence of (1) “[r]eported

and unreported cases” of Brady violations, and (2) “a

number of motions [that] were filed and granted”

around the same time. Id. at 403.

Other recent decisions from the federal courts of

appeals further show the ease with which a plaintiff

can sue a local government under § 1983. See, e.g.,

Hoefling v. City of Miami, 811 F.3d 1271, 1280–81

(11th Cir. 2016) (reversing dismissal of Monell claim,

pointing to allegation that others apparently received

similar treatment by city “as a result of the City[’s] and

[the marine patrol officers’] failure to adhere to law

and appropriate procedures regarding the investigation and destruction of potentially derelict vessels”);

Haley v. City of Boston, 657 F.3d 39, 53 (1st Cir. 2011)

(reversing dismissal in view of “wholly unexplained”

nature of city police officers’ suppression of evidence

and the alleged (but not identified) “volume of cases”

involving similar violations in the Boston Police

Department).

These cases illustrate that surviving a local government’s motion to dismiss in this context requires a

plaintiff simply to allege that others have been arrested

by officers in the same department in retaliation for

exercising their freedom of speech. Especially because

Lozman’s proposal would create a regime in which

legitimate arrests nearly always can be dressed up as

retaliatory ones, pleading the existence of other such

arrests will be “easy.” See Nat’l Archives & Records

Admin. v. Favish, 541 U.S. 157, 175 (2004).

C. Frivolous claims for retaliatory arrest

impose reputational harms, which make

recruiting and retaining police officers

more difficult.

Beyond the direct financial costs they create (e.g.,

attorney’s fees, lost employee productivity due to depositions and other case preparations), frivolous § 1983

lawsuits impose significant reputational harms—on

both the officer and the city. It bears repeating: allegations of government misconduct are easy to allege

and hard to disprove. Adopting Lozman’s rule will

only increase the harm these lawsuits bring, as they

will become easier to assert and no less difficult to

disprove. And because motivation and causation are

questions of fact, the cases will have to be tried if not

settled, instead of being resolved by motion practice.

Regardless whether the officers and local governments

ultimately win, the publicity of the litigation is likely

to unfairly erode confidence in law enforcement.

The prospect of facing personal liability for actions

taken in the line of duty also contributes to police

departments’ struggle to fill and maintain their ranks.

See Sean Curtis, 4 reasons why police departments are

struggling to fill their ranks, Policeone.com (Oct. 12,

2017).9 By making it easier to sue officers for their

arrests, Lozman’s proposed rule threatens to amplify

these recruitment and retention problems.

Available at https://goo.gl/5KLKjx.

II. State and local governments respect the

importance of their citizenry’s freedom of

speech and afford meaningful protections

against its infringement.

A. The First Amendment is not the sole

bulwark against retaliatory arrests; the

50 State Constitutions also protect the

right of citizens to speak freely without

the threat of retaliation.

Many may forget that the U.S. Constitution is not

alone in protecting the freedom of speech—State constitutions protect as well. All 50 State constitutions

include provisions that protect against speech abridgment.10 Although there is diversity in the way States

formulate this protection, all provide rich safeguards

nonetheless.11

See Ala. Const. art. 1, § 4; Alaska Const. art. I, § 5; Ariz.

Const. art. 2, § 6; Ark. Const. art. 2, § 6; Cal. Const. art. 1, § 2(a);

Colo. Const. art. II, § 10; Conn. Const. art. I, § 4; Del. Const. art.

I, § 5; Fla. Const. art. I, § 4; Ga. Const. art. I, § 1, ¶ 5; Haw. Const.

art. I, § 4; Idaho Const. art. I, § 9; Ill. Const. art. I, § 4; Ind. Const.

art. 1, § 9; Iowa Const. art. I, § 7; Kan. Const. Bill of Rights § 11;

Ky. Const. § 8; La. Const. art. I, § 7; Me. Const. art. I, § 4; Md.

Const. Declaration of Rights, art. 10; Mass. Const. Pt. 1, art. XXI;

Mo. Const. art. I, § 8; Mont. Const. art. II, § 7; Neb. Const. art. I5; Nev. Const. art. 1, § 9; N.H. Const. Pt. I, art. 22; N.J. Const.

art. I, § 6; N.M. Const. art. II, § 17; N.Y. Const. art. I, § 8; N.C.

Const. art. I, § 14; N.D. Const. art. I, § 4; Ohio Const. art. I, § 11;

Okla. Const. § II-22; Or. Const. art. I, § 8; Pa. Const. art. I, § 7;

R.I. Const. art. I, § 21; S.C. Const. art. I, § 2; S.D. Const. art. VI,

§ 5; Tenn. Const. art. 1, § 19; Tex. Const. art. I, § 8; Utah Const.

art. I, § 15; Vt. Const. ch. I, art. 13; Va. Const. art. I, § 12; Wash.

Const. art. I, § 5; W. Va. Const. art. III, § 7; Wis. Const. art. I,

§ 3; Wyo. Const. art. I, § 20.

Compare, e.g., Cal. Const. art. 1, § 2(a) (“Every person may

freely speak, write and publish his or her sentiments on all

This Court has long acknowledged that its interpretation of the First (and Fourteenth) Amendments

does not limit “the authority of the State to exercise

its police power or its sovereign right to adopt in its

own Constitution individual liberties more expansive

than those conferred by the Federal Constitution.”

PruneYard Shopping Center v. Robins, 447 U.S. 74, 81

(1980); see also Kelo v. City of New London, 545 U.S.

469, 489 (2005) (saying same thing with respect to

Fifth Amendment Takings Clause); Oregon v. Hass,

420 U.S. 714, 719 (1975) (same for Fifth Amendment

protection against self-incrimination).

Some States have taken the Court’s statements to

heart, construing their constitutions to protect more

speech than the First Amendment does. See, e.g.,

Mountain States Tel. & Tel. Co. v. Arizona Corp.

Comm’n, 773 P.2d 455, 459 (Ariz. 1989) (“Indeed, this

court has previously given art. 2, § 6 [of the Arizona

subjects, being responsible for the abuse of this right. A law may

not restrain or abridge liberty of speech or press.”); Me. Const.

art. I, § 4 (“Every citizen may freely speak, write and publish

sentiments on any subject, being responsible for the abuse of this

liberty.”); N.H. Const. Pt. I, art. 22 (“Free speech and liberty of

the press are essential to the security of freedom in a state: They

ought, therefore, to be inviolably preserved.”); Or. Const. art. I,

§ 8 (“No law shall be passed restraining the free expression of

opinion, or restricting the right to speak, write, or print freely

on any subject whatever; but every person shall be responsible

for the abuse of this right.”); R.I. Const. art. I, § 21 (“No law

abridging the freedom of speech shall be enacted.”); Va. Const.

art. I, § 12 (“That the freedoms of speech and of the press are

among the great bulwarks of liberty, and can never be restrained

except by despotic governments; that any citizen may freely

speak, write, and publish his sentiments on all subjects, being

responsible for the abuse of that right; that the General Assembly

shall not pass any law abridging the freedom of speech or of the

press.”).

Constitution] greater scope than the first amendment.”); People ex rel. Arcara v. Cloud Books, Inc., 503

N.E.2d 492, 557–58 (N.Y. 1986) (“[T]he minimal

national standard established by the Supreme Court

for First Amendment rights cannot be considered

dispositive in determining the scope of this State’s

constitutional guarantee of freedom of expression.”);

Beach v. Shanley, 465 N.E.2d 304, 312 (N.Y. 1984)

(“The fact that the Supreme Court has held the First

Amendment applicable to the States does not eliminate the right or the need of this State to provide a

distinct guarantee of freedom of the press under the

State Constitution.”).

Going further, some States have even construed

their constitutions to protect against abridgment

of speech by private actors. For example, the New

Jersey Supreme Court has held that the New Jersey

Constitution’s free-speech clause is “available against

unreasonably restrictive or oppressive conduct on the

part of private entities that have otherwise assumed a

constitutional obligation not to abridge the individual

exercise of such freedoms.” State v. Schmid, 423 A.2d

615, 628 (N.J. 1980) (reversing on state constitutional

grounds a trespass conviction for distributing political

literature at Princeton without permission); see Dublirer

v. 2000 Linwood Ave. Owners, Inc., 103 A.3d 249,

251 (N.J. 2014) (sustaining on state-law grounds a

challenge to private high-rise cooperative apartment

building’s “home rule” barring soliciting and distributing written materials in the building).

The California Supreme Court has similarly construed California’s constitution, by holding that a

privately owned shopping mall is a public forum where

visitors can exercise their freedom of speech the same

way they would be entitled to do on a public sidewalk.

Robins v. PruneYard Shopping Ctr., 592 P.2d 341, 347

(Cal. 1979), aff’d, 447 U.S. 74 (1980); see Fashion

Valley Mall, LLC v. NLRB, 172 P.3d 742 (Cal. 2007)

(holding that the right to free speech embodied in the

California Constitution even includes the right to urge

customers in a private shopping mall to boycott one of

its stores).

Other States have said likewise. See, e.g., Bock v.

Westminster Mall Co., 819 P.2d 55, 56 (Colo. 1991)

(“Within the public spaces of the Mall, Article II,

Section 10 [of the Colorado Constitution] protects petitioners’ rights to distribute political pamphlets and to

solicit signatures pledging non-violent dissent from

the federal government’s foreign policy toward Central

America.”). And still some have reserved the question

whether their constitutions’ free-speech guarantees

extend protection against private action. See Roman

v. Trustees of Tufts Coll., 964 N.E.2d 331, 338 (Mass.

2012).

Adopting Respondent’s rule as a federal matter

will not prevent state courts from interpreting their

constitutions to offer a greater degree of protection

than the federal Constitution provides, regardless of

the significant downsides of doing so, as described in

Respondent’s merits brief and this brief.

B. Internal disciplinary measures supply

additional protection against retaliatory

arrests.

In addition to bringing a claim under state law, a

person who believes he or she was arrested in

retaliation for exercising the freedom of speech has

another effective remedy, one less costly to public

safety and order than suing the officer for damages.

He or she can pursue a complaint with the police

department’s disciplinary or internal affairs unit. If

an investigation finds that the complaint has merit,

the officer will be disciplined. If more than a few

complaints are sustained, it could lead to more

vigorous department-wide training or even systemic

change in policing practices, where needed.

State and local law enforcement officers must

comply with federal and state laws, local ordinances,

and department rules and regulations or they are

subject to discipline. Most police departments—in big

and small cities alike—have established procedures

for receiving and processing citizen complaints against

the police. Some have entire departments dedicated

to police oversight and accountability. Chicago, for

example, established the Civilian Office of Police

Accountability, replacing the Independent Police Review

Authority as the civilian oversight agency of the

Chicago Police Department. COPA works alongside

the Chicago Police Department’s Bureau of Internal

Affairs and investigates all complaints of improper

arrest, among other forms of misconduct. Through

that process, COPA seeks to identify and address

patterns of police misconduct and makes policy recommendations to improve the Chicago Police Department,

thereby reducing incidents of misconduct. COPA’s

website offers citizens multiple ways to file a complaint,

explains the investigative process, and tracks individual investigations and outcomes. See Civilian Office

of Police Accountability, http://www.chicagocopa.org

(last visited Jan. 25, 2018).

The City of St. Louis’s Civilian Oversight Board

operates in much the same way, “conducting independent, impartial, thorough and timely investigations”

into allegations of police misconduct made against

the St. Louis City Metropolitan Police Department

officers. COB reviews, analyzes, investigates, and

makes independent findings and recommendations on

these complaints. Its website offers instructions (and

a two-part video) on how to file a complaint, says what

to expect during the process, and includes a link to the

complaint form itself. See How To File a Complaint

Against a St Louis Metropolitan Police Officer, Civilian

Oversight Board.12

Some States even require police departments statewide to issue written procedures for citizens to follow

for making a complaint, making the process easier. See

Cal. Penal Code § 832.5(a)(1) (“Each department or

agency in this state that employs peace officers shall

establish a procedure to investigate complaints by

members of the public against the personnel of these

departments or agencies, and shall make a written

description of the procedure available to the public.”).

A complaint that is sustained following an investigation can mar the officer’s record; require the officer

to receive remedial training; or lead to reassignment,

suspension, or, where warranted, termination. These

are serious consequences that serve to deter misconduct

but that do not also threaten the officer with potential

financial ruin.

Complaints also can lead to systemic changes in

policing practices. Civilian oversight boards or departmental internal affairs units can track complaints,

recognize problem officers or practices, observe trends

in policing, and recommend appropriate changes at

the policy-making level. In the very rare situation

where needed changes are not implemented from

within, the U.S. Department of Justice’s Civil Rights

Available at https://goo.gl/gCeRUF.

Division can intervene. See, e.g., United States Department of Justice – Civil Rights Division, Investigation

of the Ferguson Police Department (Mar. 4, 2005).13

CONCLUSION

The Court should hold that probable cause defeats a

claim for First Amendment retaliatory arrest as a

matter of law and thus affirm the judgment below.

Respectfully submitted,

LISA E. SORONEN

STATE AND LOCAL

LEGAL CENTER

444 North Capitol Street, NW

Ste. 515

Washington, D.C. 20001

(202) 434-4845

lsoronen@sso.org

SEAN R. GALLAGHER

BENNETT L. COHEN

Counsel of Record

BRITTON ST. ONGE

POLSINELLI PC

1401 Lawrence Street

Ste. 2300

Denver, CO 80202

(303) 572-9300

bcohen@polsinelli.com

Counsel for Amici Curiae

January 29, 2018

Available at https://goo.gl/bMmpT3.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.