Petition for Writ of Certiorari — Denise DeMartini, Petitioner v. Town of Gulf Stream, Florida

Supreme Court briefJun 26, 2020

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No. _______

IN THE

Supreme Court of the United States

_______

DENISE DEMARTINI,

Petitioner

TOWN OF GULF STREAM,

Respondent.

_______

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

_______

PETITION FOR A WRIT OF CERTIORARI

_______

L. MARTIN REEDER, JR.

ATHERTON GALARDI

MULLEN & REEDER PA

224 Datura Street

Suite 815

West Palm Beach, FL 33401

(561) 293-2530

CHARLES D. TOBIN

Counsel of Record

CHAD R. BOWMAN

BALLARD SPAHR LLP

1909 K Street, N.W.

12th Floor

Washington, D.C. 20006

(202) 661-2200

tobinc@ballardspahr.com

Counsel for Petitioner Denise DeMartini

QUESTION PRESENTED

This Court has instructed that a plaintiff asserting

an “ordinary” First Amendment retaliation claim

under 42 U.S.C § 1983 must establish, among other

elements, “but for” causation. Hartman v. Moore, 547

U.S. 250, 259-60 (2006) (citing Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

In the criminal law context, Plaintiffs must generally

establish an additional causation element, a lack of

probable cause for the act at issue, for allegedly

retaliatory prosecutions or arrests, in light of the

specific characteristics of these acts. Id.; see also Nieves

v. Bartlett, 139 S. Ct. 1715, 1725 (2019). This Court

has never extended such an additional requirement to

allegedly retaliatory civil litigation by officials.

1. Did the Eleventh Circuit err in importing a “lack

of probable cause” requirement for a First Amendment

retaliation claim under 42 U.S.C § 1983 arising from

an allegedly retaliatory civil lawsuit by a municipality?

PARTIES TO THE PROCEEDINGS

Pursuant to Rule 14.1(b)(i) of the Rules of the

Supreme Court of the United States, the following are

parties to the proceeding below:

Denise DeMartini, appellant below and petitioner

here, is an individual.

The Town of Gulf Stream, appellee below and

respondent here, is a municipal corporation.

Wantman Group, Inc. was an appellee below and is

not a party to this proceeding.

DIRECTLY RELATED PROCEEDINGS

This case, DeMartini v. Town of Gulf Stream, was

No. 16-81371-CIV-MIDDLEBROOKS in the U.S.

District Court for the Southern District of Florida, and

was No. 17-14177 in the U.S. Court of Appeals for the

Eleventh Circuit. Pursuant to Rule 14.1(b)(iii) of the

Rules of the Supreme Court of the United States, there

are no directly related proceedings to this case other

than the rulings subject to this petition.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ..........................................i

PARTIES TO THE PROCEEDINGS ......................... ii

DIRECTLY RELATED PROCEEDINGS .................. ii

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

PETITION FOR A WRIT OF CERTIORARI ............. 1

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .............................. 4

STATEMENT OF THE CASE .................................... 5

Background ....................................................... 5

Proceedings Below ............................................ 8

The District Court Decisions ................. 8

The Eleventh Circuit Decision ............ 10

REASONS FOR GRANTING THE WRIT ................ 12

The Eleventh Circuit’s Adoption Of A “Lack Of

Probable Cause” Requirement For Retaliatory

Civil Actions Conflicts With This Court’s Clear

Rationale For Recognizing This Additional

Element In Different Contexts....................... 12

Private Attorneys Are Not Analogous

To Public Prosecutors. ......................... 13

The Exigencies Of Officer Arrests Do

Not Translate To Official Policies Of

Municipal Retaliation. ......................... 15

No Bright-Line Rule Is Necessary To

Limit Recovery For Official Retaliation

Through Civil Process. ......................... 16

The Eleventh Circuit’s Rule Sets A

Dangerous Precedent. .......................... 18

II.

Other Circuits Adjudicate Retaliation Claims

Based On Civil Lawsuits Without A “Lack of

Probable Cause” Requirement. ...................... 20

III.

This Case Is A Good Vehicle For Resolution

Of The Clear Legal Issue Presented. ............. 23

CONCLUSION .......................................................... 24

APPENDIX

Appendix A

DeMartini v. Town of Gulf Stream,

942 F.3d 1277 (2019) ........................................... 1a

Appendix B

DeMartini v. Town of Gulf Stream,

2017 U.S. Dist. LEXIS 128073 (S.D. Fla.

Aug. 9, 2017) ...................................................... 72a

Appendix C

DeMartini v. Town of Gulf Stream,

2016 U.S. Dist. LEXIS 181524 (S.D. Fla.

Dec. 23, 2016) ................................................... 113a

TABLE OF AUTHORITIES

Page(s)

Cases

Abel v. Morabito,

No. 04 Civ. 07284, 2009 U.S. Dist.

LEXIS 9631 (S.D.N.Y. Feb. 11, 2009) ................. 18

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) .............................................. 17

Bell v. School Board,

734 F.2d 155 (4th Cir. 1984) .......................... 20, 21

Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971) .............................................. 16

Cate v. Oldham,

450 So. 2d 224 (Fla. 1984) ................................... 19

Greenwich Citizens Committee, Inc. v.

Counties of Warren & Washington

Industrial Development Agency,

77 F.3d 26 (2d. Cir. 1996) .................................... 22

Harrison v. Springdale Water & Sewer

Commission, 780 F.2d 1422 (8th

Cir. 1986) .............................................................. 21

Hartman v. Moore,

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

vii

Lozman v. City of Riviera Beach,

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

Miranda v. Ponce Federal Bank,

948 F.2d 41 (1st Cir. 1991) .................................. 19

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) .................................. passim

Sedima v. Imrex Co.,

473 U.S. 479 (1985) .............................................. 14

Shero v. City of Grove,

510 F.3d 1196 (10th Cir. 2007)............................ 22

Town of Gulf Stream v. O'Boyle,

654 F. App’x 439, 2016 U.S. App. LEXIS

11183 (11th Cir. 2016) ....................................... 2, 7

Town of Gulf Stream v. O’Boyle,

No. 15-80182-CIV-MARRA, 2015 U.S.

Dist. LEXIS 84778 (S.D. Fla. June 30,

2015) ............................................................. passim

Virginia v. Moore,

553 U.S. 164 (2008) .............................................. 17

Statutes

28 U.S.C. § 1254 .......................................................... 4

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

viii

Other Authorities

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

U.S. Const., amend. XIV, sec. 1 .................................. 5

Rules of the Supreme Court of the United

States Rule 10(c) .................................................. 12

Rules of the Supreme Court of the United

States Rule 14.1(b) ................................................ ii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Denise DeMartini (“DeMartini”)

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Eleventh Circuit.

INTRODUCTION

The affluent Town of Gulf Stream, Florida targeted

Denise DeMartini in a civil Racketeering & Corrupt

Influenced Organizations Act (“RICO”) lawsuit.

DeMartini became a target of this municipal litigation

simply because she worked as an office manager and

paralegal for Martin E. O’Boyle, a developer, former

candidate for office in Gulf Stream, and a vocal critic of

the Town who regularly used Florida’s strong publicrecords law to seek public documents and thus monitor

Town activities. As part of her job, DeMartini helped

manage the operations of several of Mr. O’Boyle’s

companies. These included a real estate company, a

nonprofit government watchdog, and the small law

firm partially owned by Mr. O’Boyle’s son—a firm that

prosecuted public records lawsuits against the Town

when it failed to meet its legal obligations under

Florida law.

The Town’s RICO case against DeMartini and

nineteen other defendants rested solely on numerous

public records requests and what the Town

characterized as “extortionate” public records lawsuits

by Mr. O’Boyle and his affiliated companies. Under

controlling authority, these lawful activities could not

constitute predicate acts under RICO, and as such the

District Court dismissed the action with prejudice.

Town of Gulf Stream v. O’Boyle, No. 15-80182-CIV-

MARRA, 2015 U.S. Dist. LEXIS 84778 (S.D. Fla. June

30, 2015). The United States Court of Appeals for the

Eleventh Circuit affirmed dismissal on the pleadings.

654 F. App’x 439, 2016 U.S. App. LEXIS 11183 (11th

Cir. 2016).

This case for First Amendment retaliation under 42

U.S.C § 1983 arises from DeMartini’s attempt to seek

compensation for the Town’s admitted use of a RICO

lawsuit against her to deter her association with

Mr. O’Boyle and his organization, and ultimately to

deter public records requests and lawsuits permitted

under Florida law.

Because the Town could not reasonably contest that

constitutionally protected petitioning activity—public

records requests and litigation—was a “but for” cause

of the RICO action against numerous citizens,

including DeMartini, it proposed a new rule of law. The

Town urged the District Court to adopt an objective

“lack of probable cause” requirement for retaliatory

civil actions by state actors. This Court has articulated

such a rule for allegedly retaliatory criminal

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

and allegedly retaliatory arrests, Nieves v. Bartlett, 139

S. Ct. 1715 (2019), based on the characteristics of these

criminal-law actions. However, this Court has never

extended such an additional burden of proof to

Section 1983 plaintiffs who seek compensation for

retaliatory civil process, and the rationales of Hartman

and Nieves, as well as Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018), make clear that such an

extension is both unnecessary and inappropriate.

The District Court adopted the Town’s argument

and applied a standard in which an objectively

“reasonable belief” that the civil process against a

citizen “may be held valid” defeats a subsequent

Section 1983 claim, even where the action would not

have been brought “but for” constitutionally protected

speech, petitioning, or associational activity. App. 87a93a. The legal standard made all the difference in the

case, and the District Court granted summary

judgment to the Town on DeMartini’s Section 1983

claim.

The Eleventh Circuit affirmed and adopted the

same standard after misapplying this Court’s

reasoning in Hartman, Nieves, and Lozman, thereby

establishing a rule under which a pretextual objective

rationale for retaliatory civil action bars a victim’s

recovery under Section 1983. App. 52a-61a. The

decision discards the carefully drawn guidance this

Court has provided in recent years, is out of step with

the jurisprudence of other Circuits, and sets a

dangerous precedent under which government actors

have license to retaliate civilly against citizens with

near impunity. This Court should grant certiorari to

correct the legal standard under the federal statute.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit is reported at 942 F.3d 1277,

and is reprinted in the Appendix. App. 1a-71a. The

final decision of the United States District Court for

the Southern District of Florida granting summary

judgment is reported at 2017 U.S. Dist. LEXIS 128073,

and is reprinted in the Appendix. App. 72a-112a. The

decision of the United States District Court for the

Southern District of Florida denying a motion to

dismiss is reported at 2016 U.S. Dist. LEXIS 181524,

and is reprinted in the Appendix. App. 113a-142a.

JURISDICTION

The United States Court of Appeals for the

Eleventh Circuit issued its opinion and judgment on

November 21, 2019. App. 1a. On January 29, 2020, the

Court of Appeals denied DeMartini’s petition for

rehearing or rehearing en banc. On March 19, 2020,

this Court entered an Order in light of the ongoing

health concerns relating to the COVID-19 pandemic

extending the deadline for all petitions due after that

date to 150 days from, as relevant here, the order

denying a petition for rehearing. This petition is timely

filed within 150 days of the denial of rehearing. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the First Amendment to the

United States Constitution: “Congress shall make no

law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

government for a redress of grievances.” U.S. Const.,

amend. I.

This case also involves the Fourteenth Amendment

to the United States Constitution, which provides in

pertinent part: “No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.” U.S.

Const., amend. XIV, sec. 1.

This case also involves 42 U.S.C § 1983, which

provides in relevant part: “Every person who, under

color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress ….”

STATEMENT OF THE CASE

A. Background

The retaliatory government action underlying this

litigation is a civil RICO lawsuit filed by a

municipality against the petitioner.

The Town of Gulf Stream, Florida, joined by one of

its contractors, filed a putative class action RICO

complaint on February 12, 2015 against twenty

defendants, including petitioner Denise DeMartini.

A.0121.1 The Town’s complaint alleged that the various

1 References to the Eleventh Circuit record are to the Appellant’s

Appendix as A.__.

defendants, a collection of individuals and companies

associated with prominent businessman and

community activist Martin E. O’Boyle, participated in

a “scheme to defraud and extort” the Town through the

submission of voluminous public records requests

under the Florida Public Records Act (“PRA”) and by

resulting lawsuits under that Act. A.0121-22; see also

A.0124-29. The alleged goal of this “scheme” was

“illegally extracting settlement payments.” A.0122.

According to the Town’s complaint, the supposed

scheme included, among other things, public advocacy

aimed at the Town, such as political rallies and a local

publication, the Gulf Stream Patriot. A.0165.

The District Court noted that DeMartini did not

prepare the records requests or litigate the public

records cases at issue. App. 76a-77a. Rather, she was

named as a defendant because, according to the

complaint, she worked for O’Boyle’s companies,

including by managing the operations of the firm that

handled public records litigation and by playing an

administrative role in the nonprofit watchdog he

founded and that submitted numerous public records

requests, Citizen’s Awareness Foundation, Inc.

(“CAFI”). A.0125; see also A.0157.

The U.S. District Court for the Southern District of

Florida dismissed the action on the pleadings. O’Boyle,

2015 U.S. Dist. LEXIS 84778. Even accepting all of the

Town’s allegations as true, the District Court

recognized that neither threatening nor filing a lawsuit

could qualify as a predicate act under RICO. Id. at *56. Eleventh Circuit authority made that clear, even if

the lawsuits at issue were alleged to be malicious. Id.

at *6-7 (citing Raney v. Allstate Ins. Co., 370 F.3d 1086

(11th Cir. 2004), and United States v. Pendergraft, 297

F.3d 1198 (11th Cir. 2002)). Because the Town’s

pleaded allegations, even assuming they were true,

were “indistinguishable from Raney,” they failed as a

matter of law. Id. at *8.

Nor were the public records requests predicate acts

under RICO, according to the District Court, both

because such requests were merely “‘an essential firststep’” to litigation, according to the Town’s allegations,

and because Florida citizens have an “absolute right”

to file public records requests. Id. at *9-10.

In dismissing the Town’s action with prejudice, the

District Court concluded:

The Complaint fails not due to a lack of finesse

in pleading; rather, it fails because on the

most fundamental level, the entire factual

underpinning of Plaintiff’s’ case cannot, under

any circumstances, constitute a RICO

violation.

Id. at *12.

The Eleventh Circuit affirmed in an unpublished

decision. 654 F. App’x 439, 2016 U.S. App. LEXIS

11183. While “[a]ccepting [plaintiffs’] allegations as

true” in the posture of the case and finding the

defendants’ alleged conduct of aggressive public

records requests and litigation “distasteful,” the

Eleventh Circuit nevertheless found the Town’s

pleaded claim clearly deficient as a matter of law. Id.

at 445, 2016 U.S. App. LEXIS 11183, at *14.

B. Proceedings Below

DeMartini filed the operative complaint in this

action on August 2, 2016, asserting as relevant here a

First Amendment retaliation claim against the Town of

Gulf Stream. A.0042, A.0056-58.

The complaint alleges that the RICO lawsuit and

the Town’s multiple counter-claims in the state public

records litigation caused DeMartini fear and “extreme

stress,” ultimately leading her to leave her place of

employment of 23 years. A.0054. Although she

successfully interviewed and was offered a job as a

Communications Officer at the Brevard Sheriff’s Office,

that offer was rescinded after a background check

turned up the RICO action and the counterclaims.

A.0054-55. DeMartini had similar experiences applying

for other jobs—i.e., that the Town’s legal actions

disqualified her for the employment she sought.

A.0055.

In her lawsuit, DeMartini sought compensatory

damages and reasonable attorneys’ fees from the Town

for its retaliatory civil claims. A.0058.

1. The District Court Decisions

The District Court denied the Town’s motion to

dismiss DeMartini’s Section 1983 claim on December

22, 2016. App. 113a-142a. The District Court held that,

whether DeMartini engaged in actual association or

merely perceived association with CAFI, she

adequately alleged a constitutionally protected

activity. App. 120a-23a The Town did not dispute that

malicious prosecution of a RICO clam would be “one

form of prohibited retaliation.” App. 121a-22a (citing

Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983)).

The Town also did not urge a “lack of probable cause”

requirement until its reply brief, and therefore waived

that argument on the motion to dismiss. App. 122a,

n.4.

Following discovery, the District Court granted

summary judgment for the Town on August 9, 2017.

App. 72a-99a. In adjudicating the motion, the court

assumed that “DeMartini engaged in protected activity

by associating with CAFI and that this association

motivated the Town to initiate legal proceedings

against her.” App. 87a. Nevertheless, it concluded that

DeMartini “must—but on the record cannot—show

that the Town lacked probable cause to name her in

the RICO Action or state court third party claims.” Id.

Although the District Court recognized that the

Eleventh Circuit had never applied a “lack of probable

cause” requirement to a First Amendment retaliation

claims based on civil actions, it found such a standard

“suggested” by other Circuits. App. 91a-92a. It

therefore applied the low threshold for probable cause

in a civil context—i.e., “‘a reasonable belief that there

is a claim that may be held valid upon adjudication,’”

App. 93a (citation omitted)—and determined that

“[a]lthough the Town’s legal theory was unsuccessful,

it was not untenable.” App. 97a-98a. Thus, because the

District Court deemed this standard of probable cause

for a civil claim to defeat a retaliation claim, it

awarded summary judgment to the Town. App. 98a99a.

2. The Eleventh Circuit Decision

Reviewing the ruling below, the Eleventh Circuit

opened with extensive discussion of its own previous

decision in the Town’s RICO action. App. 2a-15a. While

noting in a footnote that the decision, affirming a

dismissal based on the pleadings, necessarily accepted

the Town’s allegations, App. 3a n.1, the court

nevertheless

adopted

many

its

prior

characterizations as fact—even noting that the panel

“characterized the activities of CAFI, O’Boyle, and the

O’Boyle law firm as ‘troubling,’” App. 14a. Given the

procedural context in the RICO action, the Circuit’s

original statement was, of course, qualified: “After

careful review, we agree that the plaintiffs' allegations,

although troubling, fail to state a claim under RICO.”

O’Boyle, 654 F. App’x at 441, 2016 U.S. App. LEXIS

11183, at *3 (emphasis added).

From that predicate, the Eleventh Circuit in this

case considered whether an allegedly retaliatory civil

claim by a municipality, like a criminal prosecution or

arrest, should be non-actionable under Section 1983 if

supported by objective probable cause.

The Eleventh Circuit drew a different line than this

Court. While this Court in 2006 characterized the “but

for” causation test under Mt. Healthy as governing an

“ordinary” First Amendment retaliation claim,

Hartman, 547 U.S. at 259-60, the Eleventh Circuit

construed that test narrowly, as applying in

“employment actions,” App. 21a-23a. The Eleventh

Circuit instead equated retaliatory municipal civil

actions with criminal prosecutions and arrests,

applying this Court’s precedent that has extended a

probable cause requirement, in those discrete contexts,

in addition to the standard “but for” rule. App. 52a58a. As such, the Eleventh Circuit found Section 1983

claims for retaliatory municipal civil actions

presumptively defeated by a showing of objective

probable cause for the underlying proceeding. App.

58a.

Moreover, “[t]his standard, which requires less

certainty than probable cause as determined in the

criminal context, is ‘not a high bar to meet.’” App. 46a.

Under such a modest standard, the Town met the bar

to show probable cause and the Eleventh Circuit

affirmed judgment against DeMartini. App. 52a-64a.

In essence, the court determined that, when a

municipality’s own unproven allegations made a civil

claim against a citizen non-frivolous, the official

decision to bring that claim inoculated it from Section

1983 liability, even if the decision is made in

retaliation for constitutionally protected conduct.

In a concurrence, Circuit Judge Rosenbaum

disagreed with the majority’s proposition that a

municipality’s objective probable cause to bring a civil

action would always defeat a Section 1983 retaliation

claim. App. 69a-71a. Noting that “civil litigation is

costly and stressful,” she recognized that “litigation can

also be a highly effective way to punish and chill

protected First Amendment activity.” App. 70a. Thus,

in her minority view, courts should always “evaluate

the surrounding circumstances” in light of the

considerations that this Court set forth in Lozman and

Nieves. Id.

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit’s Adoption Of A “Lack

Of Probable Cause” Requirement For

Retaliatory Civil Actions Conflicts With This

Court’s Clear Rationale For Recognizing

This Additional Element In Different

Contexts.

In an “ordinary” First Amendment retaliation claim

under 42 U.S.C § 1983, a plaintiff must establish,

among other elements, “but for” causation. Hartman,

547 U.S. at 259-60. This Court has set an additional

requirement, one that will “differ from this standard,”

in two specific contexts Id. at 260. A Section 1983

plaintiff must also show that there was no probable

cause for the allegedly retaliatory act where that act

involves either a prosecution or an arrest, in light of

the specific characteristics of these actions. Id.; see also

Nieves, 139 S. Ct. at 1725. Yet even in these situations,

where circumstances generally warrant a bright-line

rule, probable cause does not defeat retaliatory acts

that emerge from an official municipal policy. Lozman,

138 S. Ct. at 1954-55.

The Eleventh Circuit, in deciding that “probable

cause generally defeats a First Amendment claim

predicated on an underlying civil lawsuit,” App. 62a,

diverged from this Court’s clear direction on the

interpretation of federal law. As such, the Court’s

review is warranted under Rule 10(c) of the Rules of

the Supreme Court.

A. Private Attorneys Are Not Analogous To

Public Prosecutors.

This Court adopted an additional “lack of probable

cause” requirement in the context of First Amendment

retaliation in Hartman, where a plaintiff asserted

claims against individual criminal investigators based

upon retaliatory criminal prosecutions that they

allegedly induced. 547 U.S. at 252.

In considering the claim, this Court recognized that

“[o]fficial reprisal for protected speech ‘offends the

Constitution [because] it threatens to inhibit the

exercise of the protected right.’” Id. at 256 (quoting

Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998)).

As such, even theoretically proper official actions

would be improper if taken for retaliatory purposes:

Some official actions adverse to such a speaker

might well be unexceptionable if taken on

other grounds, but when nonretaliatory

grounds are in fact insufficient to provoke the

adverse consequences, we have held that

retaliation is subject to recovery as the but-for

cause of official action offending the

Constitution.

Id. (citing Crawford-El and Mt. Healthy).

Nevertheless, the Court created an exception to the

typical standard for allegedly retaliatory criminal

prosecutions. A central rationale for the Court’s

adoption of an additional burden for plaintiffs in this

context was the separation of the alleged bad actors—

the criminal investigators—from the allegedly

retaliatory independent charging act by a prosecutor,

and the resulting “complex” causation problem. Id. at

261-62. This difficulty is exacerbated by the immunity

of the prosecutor and the “long-standing presumption

of regularity accorded to prosecutorial decisionmaking.” Id. at 263.

In extending the Hartman exception to retaliation

claims based upon civil actions initiated by

government officials or entities, the Eleventh Circuit

equated private lawyers with public prosecutors. App.

53a-55a. The analogy is inapt. Private attorneys, while

subject to ethics rules, fundamentally serve as

representatives of their clients and are not bound by

the same constraints as government prosecutors, nor

do they enjoy the same independence. E.g., Sedima v.

Imrex Co., 473 U.S. 479, 504 (1985) (“In the context of

civil RICO, however, the restraining influence of

prosecutors is completely absent.”). A such, the “causal

complexities” articulated by this Court for criminal

charging decisions do not warrant requiring a showing

of a lack of probable cause in civil actions generally.

The Eleventh Circuit’s departure from this Court’s

reasoning is more than inapt, however. It would also

turn the Court’s careful exception into a new

presumptive standard for most Section 1983 retaliation

claims. Equating a private lawyer who represents the

interests of a client with an independent prosecutor

would functionally import a “probable cause” defense to

every allegedly retaliatory official act made after

consulting private counsel.

Nor does Hartman’s other rationale—that probable

cause is adjudicated in criminal cases in any event,

and is highly probative of “but for” causation,

Hartman, 547 U.S. at 254—support the Eleventh

Circuit’s error below. Probable cause is not typically

adjudicated in civil cases. Engrafting the additional

standard of probable cause into civil contexts, as the

Eleventh Circuit did here, App. 52a-53a, converts the

careful exception this Court crafted in criminal

contexts into the presumptive rule. This heightened

burden will make it nearly impossible for plaintiffs to

overcome when faced with retaliatory civil litigation

brought by the government against its citizens.

B. The Exigencies Of Officer Arrests Do

Not Translate To Official Policies Of

Municipal Retaliation.

In Nieves, this Court extended the Hartman

exception to allegedly retaliatory arrests, 139 S. Ct. at

1725, at least absent a demonstration of disparate

treatment, id. at 1727, or an official government policy

of retaliation, Lozman, 138 S. Ct. at 1954. It did so

because “[o]fficers frequently must make ‘split-second

judgments’ when deciding whether to arrest,” and

those judgments may include a consideration of speech.

Nieves, 139 S. Ct. at 1724.

Civil litigation such as that at issue here, where

allegedly retaliatory action followed months of

deliberation by the Town of Gulf Stream, in no fashion

mirrors a police officer’s split-second determinations.

Rather, an official decision by a municipality to pursue

civil litigation against a citizen is clearly akin to the

kind of official municipal policy considered in Lozman,

138 S. Ct. at 1954.

Indeed, it bears emphasis that both Hartman and

Nieves were actions against individual public

employees—i.e., Bivens actions. See generally Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971).

Neither involved a claim against a municipality itself.

In such situations, a Section 1983 plaintiff must

already make the additional evidentiary showing that

“the harm was caused in the implementation of ‘official

municipal policy.’” Lozman, 138 S. Ct. at 1951 (quoting

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978)). The Eleventh Circuit failed to answer why

such a showing is not sufficient. As Justice Gorsuch

has noted, no rationale for an additional hurdle for

plaintiffs can be found in the text of the statute or in

the context of other cases. Nieves, 139 S. Ct. at 1731

(Gorsuch, J., dissenting).

C. No Bright-Line Rule Is Necessary To

Limit Recovery For Official Retaliation

Through Civil Process.

Ultimately, the Court’s decisions in Hartman and

Nieves recognized that a bright-line rule foreclosing a

remedy for official retaliation by individual

government employees would likely foreclose some

legitimate claims. Nieves, 139 S. Ct. 1727 (“we

conclude that the no-probable-cause requirement

should not apply when a plaintiff presents objective

evidence that he was arrested when similarly situated

individuals not engaged in the same sort of protected

speech had not been”); Hartman, 547 U.S. at 264

(noting that causation might be shown by “a

prosecutor’s disclosure of retaliatory thinking” or

where “a prosecutor was nothing but a rubber stamp

for … the police”); see also Lozman, 138 S. Ct. at 195455 (rejecting “lack of probable cause” element where

arrest resulted from official municipal policy of

retaliation).

Nevertheless, the Court adopted a bright-line rule

in the context of criminal actions due to practical need,

given the 29,000 arrests a day in the United States and

the “overwhelming litigation risks” attendant to caseby-case adjudication of causation. Nieves, 139 S. Ct. at

1724-25. Balanced against this was modest additional

litigation burden, as “[l]ike retaliatory prosecution

cases, evidence of the presence or absence of probable

cause for the arrest will be available in almost every

retaliatory arrest case.” Id. (citation omitted).

Such bright-line rules are common in Fourth

Amendment jurisprudence in light of the particular

needs of policing. See, e.g., Virginia v. Moore, 553 U.S.

164, 175 (2008) (citing “the need for a bright-line

constitutional standard” for arresting officers); Atwater

v. City of Lago Vista, 532 U.S. 318, 347 (2001) (noting

that case-by-case determinations risk turning “every

discretionary judgment in the field … into an occasion

for constitutional review”). However, they are not a

necessary part of First Amendment retaliation

analysis, nor do official policies of municipal retaliation

through civil actions warrant such protection.

Fortunately, policies of retaliatory municipal

litigation against citizens remain—for now at least—

relatively uncommon, so there is no exigent need to

avoid “overwhelming litigation risks.” Nor is the

additional burden modest, as “probable cause” is not a

standard consideration in civil cases. In short, there is

no reason that a Mt. Healthy, “but for causation” test,

applied to the facts of each particular case, is

insufficient to adjudicate claims for official retaliation

fairly through civil litigation.

D. The Eleventh Circuit’s Rule Sets A

Dangerous Precedent.

Dissenting from the Court’s decision in Hartman,

Justice Ginsburg, joined by Justice Breyer, noted that,

under the additional burden allocation adopted for

prosecutions in that case “only entirely ‘baseless

prosecutions’ would be checked.” 547 U.S. at 266-67

(Ginsburg, J, dissenting). Thus, official retaliation in

most cases would be “cost free,” leaving no remedy

under federal law for either the “costs entailed in

mounting a defense” or “reputational loss.” Id.

Under the Eleventh Circuit’s standard, Justice

Ginsburg’s prediction would apply to most retaliation

claims, expanding this Court’s narrow rulings in

Hartman and Nieves far beyond their specific contexts.

It thus sets a dangerous precedent under which only

entirely baseless civil retaliatory actions by

government officials have a remedy in federal law.

Citizens such as DeMartini would be without recourse

to recover compensation for either defense costs or

reputational damages.

For example, a town could choose to sue a

newspaper columnist for unpaid taxes after the

publication of columns critical of the officials—as was

alleged in one case. Abel v. Morabito, No. 04 Civ.

07284, 2009 U.S. Dist. LEXIS 9631, at *2 (S.D.N.Y.

Feb. 11, 2009). That case proceeded to trial under a

“but for” causation standard despite the town’s

protestation that it had a “legitimate basis” for suing

the citizen. Id. at *12-13. Under the Eleventh Circuit’s

DeMartini standard, the claim would have been

dismissed, even if the town was factually or legally

wrong.

DeMartini thus throws open the door for retaliatory

civil claims by government officials that may not be

compensable under federal law and creates a road map

for those in power to follow to achieve that end.

This case illustrates such a result. There is no

dispute that Mr. O’Boyle was a long-time critic of the

Town of Gulf Stream, or that the Town adopted an

official policy to deal with him and his related

companies and employees. As part of that policy, the

Town instituted a meritless RICO action against

twenty defendants—including DeMartini—premised

entirely on the prosecution of public records lawsuits,

many of them successfully. As courts have recognized,

“[c]ivil RICO is an unusually potent weapon—the

litigation equivalent of a thermonuclear device. The

very pendency of a RICO suit can be stigmatizing and

its consummation can be costly; a prevailing plaintiff,

for example, stands to receive treble damages and

attorneys’ fees.” Miranda v. Ponce Fed. Bank, 948 F.2d

41, 44 (1st Cir. 1991).

Not only was the RICO action foreclosed by

controlling Eleventh Circuit precedent, O’Boyle, 654 F.

App’x 439, but Florida law expressly bars state officials

from bringing malicious prosecution claims, Cate v.

Oldham, 450 So. 2d 224, 227 (Fla. 1984) (“There

simply is no historical basis for a state officer to

retaliate with a malicious prosecution action when he

has been sued in his official capacity.”). Nevertheless,

based on the Town’s own allegations, the Eleventh

Circuit deemed the municipality’s argument for a

change in the law “reasonable.” App. 51a.

Under such a standard, the careful distinctions

drawn by this Court in Hartman, Lozman, and Nieves

become meaningless and Section 1983 would be

toothless against official retaliation based on First

Amendment conduct.

II. Other Circuits Adjudicate Retaliation Claims

Based On Civil Lawsuits Without A “Lack of

Probable Cause” Requirement.

While DeMartini finds a requirement that allegedly

retaliatory civil claims be “frivolous” in the earlier

decisions of other Circuits, App. 39a-44a, a careful

review of those authorities undercuts any argument of

agreement among the Circuits on a DeMartini

standard. Rather, the Circuits have adjudicated

retaliation claims based on civil litigation without

adopting a probable case test.

In Bell v. School Board, the Fourth Circuit

considered a situation in which a mother and child

were named by a school board as defendants to a

declaratory action regarding segregation of school

districts after they spoke out against the plan. 734

F.2d 155, 156 (4th Cir. 1984). The mother filed a

retaliation suit, alleging that the School used the

litigation to silence her at public meetings. The District

Court dismissed and the Fourth Circuit affirmed

because “we agree with the district court’s finding that

the School Board had no ‘evil motive’ when it initiated

the declaratory judgment suit.” Id. at 157.

Indeed, when the mother asked to be dropped from

the underlying declaratory judgment lawsuit, the

board “promptly complied” and dismissed her with

prejudice. Id. at 156. The court’s focus in review of her

retaliation claim was clearly on insufficient allegations

of a retaliatory motive, as noted in a concurrence. Id.

at 158 (Rosenn, J., concurring) (“Neither plaintiff’s

complaint not their supporting documentation …

alleges that the School Board instituted its suit to

quiet Ms. Bell’s opposition to the plan.”). In other

words, the case was decided on a “but for” causation

theory under a Mt. Healthy standard.

In Harrison v. Springdale Water & Sewer

Commission, the Eighth Circuit considered a claim by

citizens who alleged First Amendment retaliation

when the government filed a counterclaim for

condemnation “to force them to settle their lawsuit and

to sell their property to the City.” 780 F.2d 1422, 1428

(8th Cir. 1986).

The court found a valid First Amendment

retaliation claim where the commission’s attorney

“admitted that the condemnation counterclaim was

filed only as a tactical measure to pressure the

Harrisons to settle their damage claim against the

Commission.” Id. at 1425. While the decision noted

that the counterclaim was “frivolous,” id. at 1428, the

court’s conclusion arose from the commission’s

subjective intent—and not an objective standard. Id.

Thus, whether objective probable cause for the

counterclaim existed was irrelevant in light of the “but

for” causation—an admission of a retaliatory purpose,

akin to that by the Town of Gulf Stream in this case.

In Greenwich Citizens Committee, Inc. v. Counties of

Warren & Washington Industrial Development Agency,

the Second Circuit considered a retaliation claim based

on a city’s allegedly retaliatory counterclaims against a

plaintiff who sought to stop a waste incinerator project.

77 F.3d 26, 28 (2d. Cir. 1996). The Court applied a

Mt. Healthy test, holding that “a governmental entity

alleged to have chilled a litigant’s freedom of speech by

filing counterclaims in response to a complaint must be

shown to have acted with retaliatory intent.” Id. at 30.

Moreover, government officials “would still be entitled

to avoid liability if they could persuade the jury that

they would have filed the counterclaims even in the

absence of the impermissible reason.” Id. at 31.

Finally, in Shero v. City of Grove, the Tenth Circuit

affirmed summary judgment for a city facing a Section

1983 claim based on allegations that the city denied

plaintiff certain records, limited his speaking time at a

city council meeting, and filed a state declaratory

judgment suit against him allegedly in retaliation for

requesting records. 510 F.3d 1196, 1203-04 (10th Cir.

2007). Its test did not involve probable cause. Id. at

1203. Rather, the court affirmed because the plaintiff

failed to show that a declaratory judgment action was

retaliatory or that his speech was chilled. Id.

In short, the Eleventh Circuit’s DeMartini decision

stands alone amongst the Circuits in extending a

Hartman rule to all allegedly retaliatory civil claims by

government officials or entities.

III.

This Case Is A Good Vehicle For Resolution

Of The Clear Legal Issue Presented.

This case presents a straightforward and clear

opportunity for this Court to clarify the proper legal

standard for Section 1983 claims based on alleged civil

retaliation through an official municipal policy. There

is little dispute of relevant material fact, and the

District Court resolved the Town of Gulf Stream’s

motion for summary judgment on the single legal basis

that it had probable cause for its RICO action. App.

87a.

Similarly, the Eleventh Circuit squarely considered

only the questions of whether objective probable cause

was a defense for an alleged official municipal act of

civil retaliation, and whether the Town had such

objective probable cause for its meritless RICO claim

against citizens and entities connected to public

records requests and public records lawsuits under

Florida law. App. 44a-45a.

As such, the proper legal standard has been

preserved and is dispositive of the claims. It is an

important question of federal law upon which this

Court has provided guidance that is at odds with the

Eleventh Circuit’s decision. For these reasons, and

because the Eleventh Circuit ruling sets a dangerous

precedent by making official retaliation through civil

process nearly impossible to remedy, this Court should

grant the petition and resolve the proper standard of

proof in a case of alleged official municipal retaliation

through civil action.

CONCLUSION

For the foregoing reasons, the Petition for a writ of

certiorari should be granted.

June 26, 2020

Respectfully submitted,

CHARLES D. TOBIN

Counsel of Record

CHAD R. BOWMAN

BALLARD SPAHR LLP

1899 K St., NW, Twelfth Floor

Washington, DC 20036

Telephone: (202) 508-1100

tobinc@ballardspahr.com

bowmanchad@ballardspahr.com

L. MARTIN REEDER, JR.

ATHERTON GALARDI MULLEN &

REEDER PA

224 Datura Street, Suite 815

West Palm Beach, FL 33401

Telephone: (561) 293-2530

martin@athertonlg.com

Counsel for Petitioner

Denise DeMartini

APPENDIX

APPENDIX A

In The United States Court of Appeals

FOR THE ELEVENTH CIRCUIT

No. 17-14177

D.C. Docket No. 9:16-cv-81371-DMM

DENISE DEMARTINI,

PLAINTIFF-APPELLANT

TOWN OF GULF STREAM, WANTMAN GROUP

INC., ROBERT A. SWEETAPPLE,

DEFENDANTS-APPELLEES

RICHMAN GREER, P.A., GERALD F. RICHMAN,

DEFENDANTS

__________

Appeal from the United States District Court for the

Southern District of Florida. D.C.

__________

(November 21, 2019)

Before ROSENBAUM,

CARNES, Circuit Judges.

HULL

and

JULIE

HULL, Circuit Judge:

Plaintiff Denise DeMartini appeals the district

court's grant of summary judgment (1) to the

defendant Town of Gulf Steam, Florida on her First

Amendment retaliation claim brought under 42

U.S.C. § 1983 and (2) to the defendant Wantman

Group, Inc., a government contractor, on her

malicious prosecution claim brought under Florida

law.

To place this appeal in context, we begin with what

happened in a prior lawsuit and appeal involving the

same parties here. See Town of Gulf Stream v.

O'Boyle, 654 F. App'x 439 (11th Cir. 2016)

(unpublished).

PRIOR LAWSUIT AND APPEAL

The Town of Gulf Stream ("the Town") is a "tiny

town of under 1,000 residents and just 17 full time

employees" in Palm Beach County, Florida. Id. at 441.

In their prior lawsuit, the Town and its contractor, the

Wantman Group Inc. ("Wantman") sued Denise

DeMartini (the plaintiff here), Martin O'Boyle, and

others under the Racketeer Influenced and Corrupt

Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c),

1964(c), for a fraud and extortion scheme. Id. at 44042.

O'Boyle resides in the Town. From 1984 until 1995,

and then again from 2003 to 2015, DeMartini worked

for O'Boyle's real estate company, CRO Realty, Inc.

O'Boyle was DeMartini's direct supervisor and

described her as his "left hand" woman.

At the direction of O'Boyle, Citizens Awareness

Foundation, Inc. ("CAFI") was created as a not-forprofit corporation, whose stated purpose included

testing and enforcing municipalities' compliance with

Florida public records law. O'Boyle was the sole

funder of CAFI and he used it as a tool to file

thousands of public records requests to the Town

under Florida's public records law. Plaintiff

DeMartini worked as CAFI's Treasurer and later

Director. O'Boyle's CRO Realty paid DeMartini for

her work on behalf of CAFI.

In the prior lawsuit, the Town alleged that plaintiff

DeMartini, O'Boyle, and others "pummeled the town

with nearly 2,000 public records requests, many of

them frivolous, with no intention of actually reviewing

the results." Id. The Town also alleged that, if the

Town failed to timely respond then the O'Boyle Law

Firm would sue the Town, allegedly "engag[ing] in a

pattern of frivolous litigation activity." Id. at 441, 444.

The O'Boyle Law Firm was formed by O'Boyle's son,

funded by O'Boyle, and was in the same building as

O'Boyle's real estate company. Here is how O'Boyle

and DeMartini orchestrated their scheme through

CAFI.1

A. FIRST STEP: PUBLIC RECORDS REQUEST

As its first step, CAFI would issue public records

requests "on a grand scale" to the Town, pursuant to

1 In the prior lawsuit, this Court stated that "[w]e derive these

facts from the complaint's well-pled allegations, which we accept

as true for purposes of the motions to dismiss." Gulf Stream, 654

F. App'x at 441 n.2.

Florida's Public Records Act, Fla. Stat. § 119.07. Id. at

444. Specifically, § 119.07 provides that a custodian of

a public record, such as the Town, (1) shall permit the

record to be inspected and copied, at any reasonable

time, under reasonable conditions, (2) must

acknowledge requests to inspect or copy records

promptly, and (3) must respond to such requests in

good faith. Fla. Stat. § 119.07(1)(a), (c).

As relevant here, CAFI sent the Town "nearly

2,000 public records requests." Gulf Stream, 654 F.

App'x at 441-42. These public records requests were

deliberately vague and ambiguous in order to induce

a violation of § 119.07. See id. Our prior decision listed

examples of CAFI's requests as production of:

(1) All email addresses created or received

by the Town of Gulf Stream";

(2) "All

phone numbers in the [T]own's

records"; and

(3) "Any and all records containing a social

security number."

Id.

One of CAFI's requests went to Wantman, a

contractor of the Town. Id. at 442. Florida's public

records law applies also to private entities, such as

Wantman, that contract with government agencies.

See Fla. Stat. § 119.0701. CAFI sent Wantman a

public records request by e-mail, which directed that

a response be sent to this e-mail address:

Vendor.Contract.Publishing@gmail.com.

Citizens

Awareness Found., Inc. v. Wantman Grp., Inc., 195 So.

3d 396, 397-98 (Fla. Dist. Ct. App. 2016). CAFI's

request was sent to the e-mail address of Robin

Petzold, the consultant on the government contract,

with the additional language "DidTheyReadIt.com"

attached at the end of her e-mail address, rendering

the e-mail address unrecognized by Wantman's

computer network. Id. at 397-98, 401.2 The subject

line of the e-mail stated that it was a public records

request, and it indicated that it was sent from "An

Onoma." Id. at 398. The e-mail's suspicious

appearance led Petzold to believe that it was

illegitimate and spam, and she did not respond to it.

Id. at 401.

B. SECOND STEP: STATE LAWSUITS FILED

The second step of CAFI's strategy involved the

O'Boyle Law Firm's filing many lawsuits. If the Town

or Wantman did not respond promptly or adequately

to the public records requests, CAFI, through the

O'Boyle Law Firm, would threaten litigation, or

actually file a lawsuit, against the Town or another

entity. CAFI, through the O'Boyle Law Firm, would

demand unreasonable settlements, which included

excessive amounts of attorney's fees and costs. Gulf

Stream, 654 F. App'x at 441. The demands were based

on threats that CAFI would initiate expensive and

burdensome litigation or make pending litigation

more expensive and burdensome. Id. The end game of

Neither the government contract nor Wantman's website

identifies Petzold as a custodian of public records. Citizens

Awareness, 195 So. 3d at 401.

the scheme was not to have the Town's public records

actually released, but to obtain attorney's fees for the

O'Boyle Law Firm. Id.

In that regard, Florida's Public Records Act, Fla.

Stat. § 119.12, contains an attorney's fees provision

that potentially applied when CAFI filed its lawsuits

against the Town to enforce the production of public

records. Section 119.12 provides that the state court

shall award the reasonable costs of enforcement,

including reasonable attorney's fees, against the

custodian if the state court determines that: (a) the

custodian unlawfully refused to permit a public record

to be inspected or copied; and (b) the complainant

provided written notice identifying the public record

request to the custodian at least five business days

before filing the civil action. Fla. Stat. § 119.12(1)(a),

(b). "Unlawful refusal under [§] 119.12 includes not

only affirmative refusal to produce records, but also

unjustified delay in producing them." Yasir v.

Forman, 149 So. 3d 107, 108 (Fla. Dist. Ct. App. 2014)

(quotation omitted).3 In short, if the Town or

Wantman did not promptly respond in five days, CAFI

would file a lawsuit and demand attorney's fees. And

it was the policy and practice of the O'Boyle Law Firm

to demand settlement of cases with a provision for

3 As discussed later, the complainant does not recover attorney's

fees (and instead has to pay attorney's fees) if the state court

determines that the complainant requested to inspect or copy a

public record or participated in the civil action for an "improper

purpose." Fla. Stat. § 119.12(3). And "improper purpose" means

a request to inspect or copy a public record or to participate in

the civil action primarily to cause a violation of this chapter or

for a frivolous purpose. Id.

attorney's fees in excess of the fees actually incurred

by the O'Boyle Law Firm for the cases.

As an example of the abusive litigation, in May

2014, when Wantman failed to respond to CAFI's email request for records within the required time

frame, CAFI filed suit after waiting merely 18 days

and demanded several thousand dollars to settle the

claim.4 Citizens Awareness, 195 So. 3d at 401. After

the suit was filed, Wantman voluntarily provided the

requested records. Id. at 398. Nevertheless, CAFI

persisted with the lawsuit. Id. at 397. The Florida

state court concluded that Wantman's delay in

providing the records was not so unjustifiable that it

amounted to an unlawful refusal to provide the

records to justify an award of attorney's fees. Id. at

397, 401. Affirming the trial court's ruling, the Florida

appellate court noted that Wantman believed the

request was "illegitimate" and stated that "[t]he

public records law should not be applied in a way that

encourages the manufacture of public records

requests designed to obtain no response, for the

purpose of generating attorney's fees." Id. at 401.

C. Joel Chandler's Role in CAFI

In January 2014, O'Boyle recruited Joel Chandler

to be CAFI's Executive Director. While acting as

CAFI's Executive Director, Chandler became

convinced that CAFI was being used for improper

purposes and that the organization was engaged in

potentially fraudulent and illegal activities. As a

4 Gerald Richman and the lae firm Richman Greer represented

Wantman in that lawsuit.

result, Chandler resigned from CAFI in June 2014,

approximately five months after he accepted the

position.

Within a few days after resigning from CAFI,

Chandler contacted Robert Sweetapple, who was the

Town's special counsel handling the public records

requests. Chandler told counsel Sweetapple that he

believed CAFI, O'Boyle, and the O'Boyle Law Firm

were victimizing the Town with their public records

activities, and that those activities involved criminal,

fraudulent, and unethical conduct. Chandler also

disclosed this information to the Town's attorney,

Joanne O'Connor, as well as to the media.

In July 2014, Chandler met with Sweetapple, the

Town's special counsel, and provided Sweetapple with

documents and a sworn statement detailing CAFI's

fraudulent conduct. Chandler also gave Sweetapple a

sworn video statement concerning his involvement

with CAFI, O'Boyle, and the O'Boyle Law Firm.

Chandler advised Sweetapple about CAFI's two-step

"windfall scheme" of (1) issuing deliberately vague

and ambiguous public records requests to the Town

and other entities and (2) then demanding excessive

amounts of attorney's fees and other costs to settle the

dispute when the Town or other entities failed to

respond to the public records requests in a timely

manner.

Chandler informed counsel Sweetapple that

O'Boyle had orchestrated hundreds of public records

requests and directed the O'Boyle Law Firm to file

numerous lawsuits on behalf of CAFI, many times

without Chandler's authorization. Chandler reported

that the O'Boyle Law Firm had settled cases on behalf

of CAFI without having fee arrangements or

contingency agreements in place, without closing

statements, and without providing any accounting of

the settlements to CAFI.

Chandler also explained that he became uneasy

with DeMartini's close rapport with O'Boyle as well as

her dual roles at the O'Boyle Law Firm and as a

director of CAFI. Chandler's grievances against

DeMartini included the following: (1) she chastised

him for not supplying the O'Boyle Law Firm with

sufficient cases from CAFI; (2) she worked with

another employee to reject Chandler's pitch to refer

CAFI's litigation to law firms besides the O'Boyle Law

Firm; (3) CAFI adopted a policy that permitted

DeMartini—a non-lawyer—to authorize public

records requests and litigation; and (4) she demanded

that Chandler produce a "minimum of 25 lawsuits"

per week for the O'Boyle Law Firm.

After obtaining Chandler's sworn statement,

Sweetapple compared it to the information he had

already obtained through his own investigation and

concluded that Chandler's account of CAFI's "windfall

scheme" was credible.

D. RICO Civil Suit

With all of this information in hand, the Town

decided to take action. In October 2014, the Town

held a regular meeting of its Commission to consider

specific ways to thwart O'Boyle's "malicious and

frivolous lawsuits and public records requests." At the

October 2014 meeting, the Town's attorney, Joanne

O'Connor, advised the Commission that: (a) more

10a

than 1,500 public records requests had been

submitted to the Town since August 27, 2013; (b) the

Town believed that an overwhelming majority of those

requests were submitted by O'Boyle, one other prolific

requester, or entities that they controlled; (c) these

requests resulted in 36 lawsuits against the Town;

and (d) the requests had "barraged" the small town

staff and, since January 2014, the Town had spent

$370,000 in legal fees in defending those actions and

responding to those requests. At the October 2014

meeting, Scott Morgan, the Town's Mayor, explained

that the Town was considering filing a RICO action

and retaining attorney Gerald Richman and his law

firm, Richman Greer, as special counsel. At the

meeting, Richman introduced himself, explaining to

the Town that he was a past president of the Florida

bar and an active trial lawyer with experience in

RICO lawsuits. Richman encouraged the Town to file

a RICO action against the O'Boyle Law Firm, CAFI,

and certain individuals. Richman stated that the "best

way to counteract" O'Boyle's operation was to "file a

RICO action in federal court." Richman explained that

the RICO action would seek injunctive relief and

damages against the O'Boyle Law Firm, CAFI, and

the individuals involved.

Mayor Morgan asked special counsel Richman

about damages, and Richman responded that a

successful RICO action would provide for attorney's

fees and damages related to the costs of defending the

public records lawsuits. After Richman discussed his

fee arrangement, Thomas Stanley, a Town

Commissioner, asked Richman about other litigation

costs. Richman explained that there would be costs for

11a

depositions, interrogatories, and experts as the case

progressed, but initially the costs would be related to

the complaint, service, and class certification. Joan

Orthwein, another Town Commissioner, asked special

counsel Richman what the overall cost of the RICO

litigation would be, and Richman estimated that it

would cost between $20,000 and $25,000 in fees the

first few months. Donna White, also a Town

Commissioner, asked Richman how long the RICO

action would last, but Richman did not speculate.

Mayor Morgan stated that the Town "ha[d]

suffered enough" by expending funds, time, resources,

and morale and was encountering "difficulties [with]

retaining and hiring employees as a result of the

scandalously malicious and frivolous lawsuits and

public records requests filed by . . . O'Boyle under

related entities." The Mayor explained that the Town

could "either take the approach of defending these

individual cases as they come in, and bleed to death

by a thousand cuts, or . . . take steps necessary to stop

those cases by advancing this case." The Mayor

commented that there was a "conspiracy . . . to

advance actions that essentially do nothing other than

shake down municipal agencies and related

contractors for funds" and "all the talk of open public

access . . . is nonsense." He explained that "by putting

a stop to it with this RICO action, we then put a stop

to the individual lawsuits on the public records

requests." The Mayor was "confident" that the RICO

lawsuit would stop the individual lawsuits and public

records requests.

12a

Commissioner Orthwein responded, "I agree,

because I don't see an end just defending one by one.

I think we have to take it all as a group and go forward

because just defending is not doing anything. . . . I

think it's very important that we just don't bleed to

death, we protect ourselves."

After the discussion, the Commission voted to

retain Richman and his law firm, Richman Greer, as

special counsel to represent the Town and to

commence the civil lawsuit. Richman also contacted

Wantman about whether it would join the RICO

lawsuit. Richman had previously represented

Wantman in other matters, including a prior public

records lawsuit involving CAFI. Based on discussions

with Richman, Wantman decided to join the Town in

the RICO civil suit.

On October 27, 2014, Sweetapple, as the Town's

special counsel, obtained Chandler's affidavit, which

outlined the existence of O'Boyle's "windfall scheme"

and DeMartini's participation.

In February 2015, attorney Richman filed a civil

complaint on behalf of the Town and Wantman

against O'Boyle, CAFI, DeMartini, and others,

alleging violations of RICO, 18 U.S.C. §§ 1962(c),

1964(c).5 In their complaint filed in federal district

court, the Town and Wantman, as named plaintiffs on

behalf of a putative class, alleged that the defendants

5 Before and after filing the RICO suit in federal court, the Town

also filed counterclaims naming DeMartini and others as thirdparty defendants in eight pending state court actions that had

been brought against the Town by O'Boyle and others alleging

violations of Florida's public records law.

13a

(1) filed large numbers of frivolous public records

requests,

which

were

often

intentionally

inconspicuous, (2) then filed lawsuits when the

requests were not addressed on time or otherwise, and

(3) then extorted their victims by demanding

settlements, including payment of their allegedly

incurred attorney's fees and costs, or face protracted

litigation and additional frivolous public records

requests and lawsuits. The complaint alleged the

defendants' pattern of frivolous public records

requests and frivolous lawsuits was extortionate

under the Hobbs Act, 18 U.S.C. § 1951. The complaint

also alleged that DeMartini was the self-appointed

"key employee" for all of O'Boyle's companies, and

that she "direct[ed] the flow of litigation" and "call[ed]

the shots."

Upon motion to dismiss by the defendants, the

federal district court dismissed the Town and

Wantman's class action RICO complaint for failure to

state a claim under Federal Rule of Civil Procedure

12(b)(6). The district court concluded that the

defendants' filing lawsuits, or even threatening to sue,

did not constitute a predicate act under RICO. In so

ruling, the district court relied on Eleventh Circuit

precedent in Raney v. Allstate Ins. Co., 370 F.3d 1086,

1087-88 (11th Cir. 2004) (holding that the filing of a

lawsuit did not state a claim for extortion as a

predicate act under RICO), and United States v.

Pendergraft, 297 F.3d 1198, 1207 (11th Cir. 2002)

(holding that neither the threat to litigate nor the

fabrication of evidence behind the threat of a lawsuit

made the action "wrongful" within the meaning of the

14a

Hobbs Act, and, thus, could not be a predicate act

under RICO).

On appeal, the Town and Wantman attempted to

distinguish our above precedent based on CAFI's

thousands of abusive public records requests, the

large volume of lawsuits actually filed or threatened

to be filed, and the systematic use of those lawsuits as

part of the O'Boyle-led scheme to defraud with the

intent to deceive. Gulf Stream, 654 F. App'x at 444.

This Court assumed that the defendants had

"engaged in a pattern of frivolous litigation activity

while abusing, on a grand scale, their statutory right

to request public documents from the government."

Id. Ultimately, however, this Court affirmed the

district court's dismissal of the Town and Wantman's

complaint. Id. at 445. We stressed that the law

encourages citizens to use the courts to redress

wrongs and enforce rights, including to resolve public

records disputes. Id. at 443-44. Moreover, citizens

have a constitutional right to petition the government

for redress under the First Amendment. Id. This

Court concluded that, regardless of the scope and

scale of the public records litigation, the courts are

equipped with procedures to deal with parties who file

frivolous litigation. Id. Therefore, this Court

determined that a threat to file litigation against the

government does not trigger liability under the Hobbs

Act. Id. at 443. Nonetheless, this Court characterized

the activities of CAFI, O'Boyle, and the O'Boyle Law

Firm as "troubling." Id. at 441.

Meanwhile, Mayor Morgan sent a letter to town

residents regarding the Town's operating budget,

15a

including a planned increase in the Town's budget for

legal fees. After describing the status of the RICO civil

lawsuit, Mayor Morgan said, "I have stated numerous

times that if the litigants will discontinue their

lawsuits, I will recommend discontinuing our RICO

action." And when the Town lost on appeal, Mayor

Morgan conceded during a public hearing held in July

2016 that the Town's RICO suit was "new to the law."

In filing the RICO suit, the Town knew that it "would

either prevail or expose the case." But "something had

to be done to try to stop the public record lawsuits that

at that time numbered 53 against the Town." Mayor

Morgan also reported that the Town had not had a

public records lawsuit since the RICO action was filed.

E. DeMartini's § 1983 Retaliation Case

Approximately two months after this Court

affirmed the district court's dismissal of the Town and

Wantman's RICO civil action, DeMartini filed the

instant § 1983 action against them. In relevant part,

DeMartini's amended complaint alleged that the

Town and Wantman's RICO lawsuit constituted

unlawful retaliation against her. Her amended

complaint contained: (1) a First Amendment

retaliation claim under § 1983 against the Town; and

(2) a malicious prosecution claim under Florida law

against Wantman.6

6 DeMartini's amended complaint also alleged Florida malicious

prosecution claims against Richman and his law firm Richman

Greer and slander per se claims against Sweetapple and

Richman. The district court granted summary judgment for

these defendants. On appeal, DeMartini does not raise these

16a

As to her § 1983 First Amendment retaliation

claim, DeMartini alleged that the speakers at the

Town's October 2014 Commission meeting made clear

that the Town was not concerned with the merits of

its RICO lawsuit or its likelihood of success. Rather,

the Town's sole motivation in voting for the RICO

lawsuit was to stop CAFI's filing of public records

lawsuits. DeMartini noted that, after this Court

affirmed the dismissal of the Town's RICO complaint,

Mayor Morgan admitted at a July 2016 Commission

meeting that the Town's RICO lawsuit served its

purpose because new public records lawsuits had not

been filed, which "was exactly what we tried to

accomplish."

DeMartini contended that she engaged in speech

that was constitutionally protected by associating

with CAFI, which had filed the multiple public records

lawsuits against the Town. DeMartini alleged that: (1)

the filing of these public records lawsuits against the

Town, at her direction, constituted constitutionally

protected activity; (2) the Town retaliated against her

protected activity by filing the RICO lawsuit; and (3)

the Town's retaliatory conduct adversely affected her

protected activity and caused her to incur substantial

damages, primarily due to the loss of her employment.

As to her Florida malicious prosecution claim

against Wantman, DeMartini alleged that Wantman

disliked her petitioning the government by using

Florida's public records law and weaponized the RICO

claims against these defendants, and, therefore, we do not

address them.

17a

suit as a means to punish her for that expression. She

claimed that Wantman sued her without having any

evidence that she had any involvement or

participation in the extortionate scheme alleged in the

RICO complaint.

The district court denied the defendants' motions

to dismiss. Later, the defendants moved for summary

judgment on all claims and DeMartini filed a crossmotion for partial summary judgment against

Wantman. The district court granted the defendants'

motions for summary judgment and denied

DeMartini's cross-motion against Wantman. The

district court concluded the defendants had probable

cause to initiate a civil RICO lawsuit which precluded

plaintiff's § 1983 First Amendment retaliation claim

and her Florida malicious prosecution claim.

DeMartini timely appealed.7

II. SECTION 1983 FIRST AMENDMENT

RETALIATION CLAIM

A. First Amendment

"A constitutional claim brought pursuant to § 1983

must begin with the identification of a specific

7 We review a grant of summary judgment de novo and apply the

same legal standards that governed the district court's decision.

Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293

(11th Cir. 2013). Summary judgment is appropriate only "if the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(a). Also, we may affirm for any reason

supported by the record, even if not relied upon by the district

court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.

2008).

18a

constitutional right that has allegedly been

infringed." Paez v. Mulvey, 915 F.3d 1276, 1285 (11th

Cir. 2019). Plaintiff DeMartini alleges that the

defendants violated her First Amendment rights—to

make public records requests and to bring lawsuits—

by filing the RICO civil action against her in

retaliation for her exercising those First Amendment

rights.

The First Amendment provides that "Congress

shall make no law . . . abridging the freedom of speech,

or . . . the right . . . to petition the government for a

redress of grievances." U.S. Const. Amend. I. The

Amendment protects "not only the affirmative right to

speak, but also the right to be free from retaliation by

a public official for the exercise of that right." Suarez

Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.

2000). "The First Amendment right to petition the

government for a redress of grievances includes a

right of access to the courts." Bank of Jackson Cty. v.

Cherry, 980 F.2d 1362, 1370 (11th Cir. 1993); see Cal.

Motor Transp. Co., v. Trucking Unlimited, 404 U.S.

508, 510, 92 S. Ct. 609, 612, 30 L. Ed. 2d 642 (1972)

(stating "[t]he right of access to the courts is indeed

but one aspect of the right of petition"). The right to

petition the government for a redress of grievances is

"one of the most precious of the liberties safeguarded

by the Bill of Rights," and is "high in the hierarchy of

First Amendment values." Lozman v. City of Riviera

Beach, 585 U.S. , , 138 S. Ct. 1945, 1954-55, 201 L.

Ed. 2d 342 (2018) (internal quotation marks omitted)

(quoting BE&K Constr. Co. v. NLRB, 536 U.S. 516,

524, 122 S. Ct. 2390, 2395, 153 L. Ed. 2d 499 (2002));

see also Connick v. Myers, 461 U.S. 138, 145, 103 S.

19a

Ct. 1684, 1689, 75 L. Ed. 2d 708 (1983). The right to

petition the government for redress of grievances is

such a fundamental right as to be "implied by '[t]he

very idea of a government, republican in form."'

BE&K Constr., 536 U.S. at 524-25, 122 S. Ct. at 2396

(quoting United States v. Cruikshank, 92 U.S. 542,

552, 23 L. Ed. 588 (1875)). In short, a citizen's public

records requests and lawsuits against the government

can clearly constitute protected First Amendment

activity.

B. Elements of Retaliation Claim

To state a § 1983 First Amendment retaliation

claim, a plaintiff generally must show: (1) she engaged

in constitutionally protected speech, such as her right

to petition the government for redress; (2) the

defendant's retaliatory conduct adversely affected

that protected speech and right to petition; and (3) a

causal connection exists between the defendant's

retaliatory conduct and the adverse effect on the

plaintiff's speech and right to petition. Bennett v.

Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).8

In § 1983 First Amendment retaliation cases, the

Supreme Court has recognized that retaliatory

When reviewing an official's retaliatory conduct for adverse

effect on protected speech, we consider whether the Town's

alleged retaliatory conduct "would likely deter a person of

ordinary firmness from the exercise of First Amendment rights."

Bailey v. Wheeler, 843 F.3d 473, 481 (11th Cir. 2016). However,

we have acknowledged that special concerns arise when an

official's "own First Amendment rights are implicated" in the

commission of an alleged constitutional tort. Dixon v. Burke Cty.,

303 F.3d 1271, 1275 (11th Cir. 2002).

20a

animus by a governmental actor is a subjective

condition that is "easy to allege and hard to disprove."

See Nieves v. Bartlett, 587 U.S. , , 139 S. Ct. 1715,

1725, 204 L. Ed. 2d 1 (2019) (internal quotation

marks omitted) (quoting Crawford-El v. Britton, 523

U.S. 574, 585, 118 S. Ct. 1584, 1590, 140 L. Ed. 2d

759 (1998)); see also Hartman v. Moore, 547 U.S. 250,

257, 126 S. Ct. 1695, 1702, 164 L. Ed. 2d 441 (2006)

(The defendant inspectors argue that "a plaintiff can

afflict a public officer with disruption and expense by

alleging nothing more, in practical terms, than action

with a retaliatory animus, a subjective condition too

easy to claim and too hard to defend against."). For

this reason, courts have identified two general

approaches

retaliation

claims

against

governmental actors, with the particular approach

chosen dependent on the type of alleged retaliation at

issue. One approach, typically used when a

governmental employee claims that he was fired

because he engaged in First Amendment activity,

looks to whether the defendant governmental

employer's retaliatory motivation was the but-for

cause of the adverse employment decision. If not—

that is, if the defendant would have taken the same

action had there not also been a retaliatory animus

motivating that conduct—then the defendant is not

liable. Mt. Healthy City School Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 285-87, 97 S. Ct. 568, 575-76, 50

L. Ed. 2d 471 (1977); see Lozman, 585 U.S. at , 138 S.

Ct. at 1955.

The

second

approach—taken

when

the

governmental defendant has utilized the legal system

to arrest or prosecute the plaintiff—has been to

21a

require the plaintiff to plead and prove an absence of

probable cause as to the challenged retaliatory arrest

or prosecution in order to establish the causation link

between the defendant's retaliatory animus and the

plaintiff's injury. Nieves, 587 U.S. at , 139 S. Ct. at

1726; Hartman, 547 U.S. at 260-61, 265-66, 126 S. Ct.

at 1704, 1706-07.

These four major Supreme Court precedents—Mt.

Healthy, Hartman, Lozman, and Nieves—expand

upon the causal connection requirement in First

Amendment retaliation cases and are necessary

background to our ultimate conclusion. We start with

the First Amendment retaliation decisions in Mt.

Healthy and Hartman.

C. 1977 Mt. Healthy: "But-For" Test When

Retaliatory Employment Actions are Alleged

Mt. Healthy involved a government employer's

discharge of a public employee. Mt. Healthy, 429 U.S.

at 276, 97 S. Ct. at 570. Specifically, in Mt. Healthy, a

city board of education (the "school board") decided not

to rehire an untenured school teacher after various

incidents indicating unprofessional demeanor. Id. at

281-83, 97 S. Ct. at 573-74. One incident was a

telephone call the teacher made to a local radio station

to report on a new school policy. Id. at 282, 95 S. Ct.

at 573. The plaintiff teacher sued the school board,

claiming that the board's refusal to renew his

employment contract violated his First Amendment

rights. Id. at 276, 97 S. Ct. at 570. Because the school

board did not suggest that the teacher violated any

established policy in making the call, the Supreme

Court accepted a finding by the district court that the

22a

call was protected speech under the

Amendment. Id. at 284, 97 S. Ct. at 574.

First

In Mt. Healthy, the Supreme Court went on to

hold, however, that since the other incidents, standing

alone, would have justified the plaintiff teacher's

dismissal, relief could not be granted to the teacher if

the school board could show that the discharge would

have been ordered even without reference to the

teacher's protected speech. Id. at 285-87, 97 S. Ct. at

575-76. In terms of precepts in the law of torts, the

Supreme Court held that even if retaliation might

have been a "substantial factor" or a "motivating

factor" for the board's decision not to rehire the

plaintiff, still there was no liability unless the alleged

constitutional violation was a but-for cause of the

employment termination. See id.

After a bench trial, the district court awarded

reinstatement with backpay to the plaintiff teacher.

Id. at 276, 97 S. Ct. at 570. The Supreme Court

vacated the district court's favorable judgment for the

plaintiff teacher because, as to causation, the district

court should have gone on to determine whether the

school board had shown that "it would have reached

the same decision as to [the plaintiff's] reemployment

even in the absence of the [plaintiff's] protected

[speech]." Id. at 285-87, 97 S. Ct. at 575-76. Although

the plaintiff had shown that his conduct (the call) was

protected speech and that his conduct was a

substantial or motivating factor in the school board's

decision not to rehire him, the school board was not

liable if it showed it would have reached the same

23a

decision in the absence of the plaintiff's protected

speech. See id.

D. 2006 Hartman: First Amendment—

Retaliatory Criminal Prosecution Claims

Require the Absence of Probable Cause

After adopting the "but for" test when a public

employee alleges retaliation by the governmental

employer based on the employee's protected First

Amendment activity, the Supreme Court addressed

the test that should apply when a citizen alleges that

he or she has been criminally prosecuted in retaliation

for First Amendment activity. In Hartman, the

Supreme Court recognized the importance that the

existence of probable cause plays in assessing

causation in a retaliatory prosecution claim and held

that a viable retaliatory prosecution claim requires

the plaintiff to plead and prove the absence of

probable cause. Hartman, 547 U.S. at 252, 265-66, 126

S. Ct. at 1699, 1707. The Supreme Court's analysis in

reaching that holding is instructive.

The plaintiff in Hartman engaged in an extensive

lobbying campaign opposing a particular postal

service policy. Id. at 252-53, 126 S. Ct. at 1699-1700.

The Postal Service criminally prosecuted the plaintiff

for violating federal statutes in that lobbying. Id. at

253-54, 126 S. Ct. at 1700. After being acquitted, the

plaintiff filed a § 1983 suit against the prosecutor and

five postal inspectors, alleging that they violated his

First Amendment rights when they instigated his

criminal prosecution in retaliation for his criticisms of

the Postal Service. Id. at 254, 126 S. Ct. at 1700.

24a

In Hartman, the Supreme Court held that, to

establish the causal connection required for a § 1983

First Amendment retaliation claim predicated on a

retaliatory criminal prosecution, a plaintiff must

plead and prove more than the subjective retaliatory

animus of a government official and a plaintiff's

subsequent injury; the plaintiff must also plead and

prove the absence of probable cause for the underlying

retaliatory criminal prosecution. Id. at 260-61, 26566, 126 S. Ct. at 1704, 1706-07.9

In reaching this conclusion, the Supreme Court

reasoned that when the claimed retaliation for

protected First Amendment conduct is a criminal

charge, a constitutional tort action for retaliation will

differ in two ways from the standard First

Amendment retaliation claim, such as a public

employee's claim that he was fired for criticizing the

government. Id. at 260, 126 S. Ct. at 1704. What is

different about a criminal prosecution case is that: (1)

"the requisite causation between the defendant's

retaliatory animus and the plaintiff's injury is usually

more complex than it is in other retaliation cases, and

9 Prior to Hartman, both this Court and the Fifth Circuit had

already held that the presence of probable cause defeats a §1983

First Amendment claim for retaliatory criminal prosecution. See

Wood v. Kesler, 323 F.3d 872, 882-883 (11th Cir. 2003)

(concluding a plaintiff's § 1983 claim for retaliatory criminal

prosecution in violation of the First Amendment is "defeated by

the existence of probable cause"); Keenan v. Tejeda, 290 F.3d 252,

260 (5th Cir. 2002) (noting that "retaliatory criminal

prosecutions in violation of the First Amendment are actionable

only if a plaintiff can also prove the common-law elements of

malicious prosecution, including the absence of probable cause to

prosecute").

25a

the need to show this more complex connection

supports a requirement that no probable cause be

alleged and proven"; and (2) "there will always be a

distinct body of highly valuable circumstantial

evidence available and apt to prove or disprove

retaliatory causation, namely evidence showing

whether there was or was not probable cause to bring

the criminal charge." Id. at 261, 126 S. Ct. at 1704.

As to causation, the Supreme Court in Hartman

explained that in retaliatory criminal prosecutions,

the causal connection is more complex because it "is

not merely between the retaliatory animus of one

person and that person's own injurious action, but

between the retaliatory animus of one person [the

postal inspector] and the action of another [the

prosecutor]." Id. at 262, 126 S. Ct. at 1705. The

Supreme Court also emphasized that "to the factual

difficulty of divining the influence of an investigator

or other law enforcement officer upon the prosecutor's

mind, there is an added legal obstacle in the

longstanding presumption of regularity accorded to

prosecutorial decisionmaking." Id. at 263, 126 S. Ct.

at 1705. The Supreme Court concluded that the

absence of probable cause was needed to "bridge the

gap between the nonprosecuting government agent's

[the postal inspector] motive and the prosecutor's

action, and to address the presumption of

prosecutorial regularity." Id. at 263, 126 S. Ct. at

1706.10 Thus, even when a government officer's

10 The Supreme Court contrasted the dual actors in retaliatory

criminal prosecution cases with "the requisite causation in

ordinary retaliation claims, where the government agent

allegedly harboring the animus is also the individual allegedly

26a

retaliatory animus is clear, it "does not necessarily

show that the [officer] induced the action of a

prosecutor who would not have pressed charges

otherwise." Id. at 263, 126 S. Ct. at 1705.

Ultimately, the Supreme Court in Hartman

concluded: "Because showing an absence of probable

cause will have high probative force, and can be made

mandatory with little or no added cost,11 it makes

sense to require such a showing as an element of a

plaintiff's case, and we hold that it must be pleaded

and proven." Id. at 26566, 126 S. Ct. at 1707. Under

Hartman, if there is probable cause for the underlying

criminal prosecution, then the § 1983 First

Amendment retaliatory criminal prosecution case

ends as a matter of law. See id. The Supreme Court,

in effect, imposed an "'objective' fact requirement" on

the plaintiff—to plead and prove the absence of

probable cause—in order to prove the chain of

causation from animus to injury. See id. at 258, 26566, 126 S. Ct. at 1702, 1707.

E. 2018 Lozman: Holding That, Given the

Unique Facts of the Case, the Existence of

taking the adverse action." Hartman, 547 U.S. at 259, 126 S. Ct.

at 1703.

The Supreme Court found the plaintiff's duty to plead and

prove the absence of probable cause would essentially be "cost

free" because the issue of probable cause will be "an evidentiary

issue in practically all such cases." Hartman, 547 U.S. at 265,

126 S. Ct. at 1707.

27a

Probable Cause Did Not Bar Lozman's First

Amendment Retaliatory Arrest Claim

More recently, in Lozman, the Supreme Court

examined whether the existence of probable cause will

also defeat a § 1983 First Amendment claim for

retaliatory arrest.12 Lozman, 585 U.S. at, 138 S. Ct.

at 1951, 1955. Although granting certiorari on that

broad question, ultimately the Supreme Court itself

limited its Lozman decision to the particular facts in

that case. Id. at, 138 S. Ct. at 1955.

The Court first reviewed its own prior decisions in

both Mt. Healthy and Hartman and its prior stated

reasons for them. See id. at, 138 S. Ct. at 1952-53.

After doing so, the Court concluded that "[o]n facts

like these, Mt. Healthy provides the correct standard

for assessing a retaliatory arrest" and plaintiff

"Lozman need not prove the absence of probable cause

to maintain a claim of retaliatory arrest against the

City." Id. at , 138 S. Ct. at 1955. The Supreme Court

cautioned, however: "The Court need not, and does

not, address the elements required to prove a

retaliatory arrest claim in other contexts." Id. The

Supreme Court added "whether in a retaliatory arrest

case the Hartman approach should apply, thus

12 Previously in 2012, the Supreme Court granted certiorari on

the question "whether a First Amendment retaliatory arrest

claim may lie despite the presence of probable cause to support

the arrest," but the Supreme Court declined to address that

question in that earlier case. See Reichle v. Howards, 566 U.S.

658, 663, 132 S. Ct. 2088, 2093, 182 L. Ed. 2d 985 (2012).

28a

barring a suit where probable cause exists, or, on the

other hand, the inquiry should be governed only by

Mt. Healthy is a determination that must await a

different case." Id. at, 138 S. Ct. at 1954. The Court

explained the reason was that "Lozman's claim is far

afield from the typical retaliatory arrest claim" and

"the mine run of arrests." Id.

Because the "unique" facts in Lozman drove that

decision, we detail them. See id. In Lozman, the

plaintiff Lozman had filed a previous civil lawsuit

contending that the City violated the state's openmeetings laws. Id. at, 138 S. Ct. at 1949. In June 2006,

the City Council held a meeting at which

Councilmember Wade suggested the City use its

resources to "intimidate" Lozman, who had filed the

open-meeting lawsuit. Id. A different Councilmember

asked whether there was "a consensus of what Ms.

Wade [was] saying" and others responded in the

affirmative. Id. Lozman alleged this formed an official

plan to retaliate against him. Id. On the other hand,

the City maintained that the only consensus reached

during the meeting was to invest the money and

resources necessary to prevail in the litigation against

it. Id.

Five months later, in November 2006, plaintiff

Lozman came to a City council meeting and gave

remarks about the recent arrest of a former county

official. Id. When Councilmember Wade directed

Lozman to stop, he continued speaking, this time

about the arrest of a former city official in West Palm

Beach. Id. Councilmember Wade directed a police

officer to "carry him out"—i.e., arrest him. Id. at, 138

29a

S. Ct. at 1949-50. Before the Supreme Court, there

was no dispute that the officer had probable cause to

arrest the plaintiff for interrupting the meeting. Id.

at, 138 S. Ct.at 1951.

Nonetheless, plaintiff Lozman alleged that the

high-level City policymakers in advance of the

meeting had devised a retaliatory plan to arrest him

because of his open-meetings lawsuit against the City

and prior public criticism of public officials. Id.

Pursuant to that alleged official policy, when Lozman

spoke up at the next council meeting, Councilmember

Wade directed police officers to arrest him. Id. at, 138

S. Ct. at 1949-50. After a 19-day trial, the jury

returned a verdict for the City on all claims. Id. at

1950.

During the trial, the district court charged the jury

that plaintiff Lozman must "prove that the arresting

officer was himself motivated by impermissible

animus against Lozman's protected speech and that

the officer lacked probable cause to make the arrest."

Id. The district court "allowed the jury to decide

whether there was probable cause to arrest [Lozman]

for the public-disturbance offense." Id. On appeal, this

Court affirmed the verdict for the City because the

existence of probable cause defeated Lozman's First

Amendment retaliatory arrest claim. Id. We also

assumed that the district court erred in instructing

the jury that the officer, rather than the City, must

have harbored retaliatory animus. However, we

concluded that error was harmless given that the jury

had found the officer had probable cause for the

arrest. Id. The Supreme Court granted certiorari on

30a

the question of "whether the existence of probable

cause defeats a First Amendment claim for a

retaliatory arrest." Id. at, 138 S. Ct. at 1950-51.

For purposes of its discussion, the Supreme Court

assumed Lozman's "arrest was taken pursuant to an

official city policy," but added "whether there was

such a policy and what its content may have been are

issues not decided here." Id. at, 138 S. Ct. at 1951.

Even though there was probable cause for Lozman's

arrest, the Court ultimately concluded that the

"unique" facts of the case warranted allowing Lozman

to proceed on his claim that the City had engaged in

an "official" policy of retaliation against him based on

his First Amendment activity. Id. at , 138 S. Ct. at

1954-55.

Explaining its reasoning, the Court identified five

considerations that justified allowing Lozman's First

Amendment retaliation claim to proceed even though

there was probable cause for his arrest. Id. at ,138 S.

Ct. at 1949,1954-55. Those five considerations were:

(1) plaintiff Lozman had alleged "more governmental

action than simply an [officer's] arrest" because he

claimed that the City "itself retaliated against him

pursuant to an 'official municipal policy' of

intimidation"; (2) the plaintiff had alleged that the

City's retaliation plan was "premeditated" and formed

months earlier (before the arrest); (3) the plaintiff had

"objective evidence” of a policy motivated by

retaliation, as he had a transcript of a closed-door

meeting where a Councilmember stated that the City

should use its resources to "intimidate" Lozman and

others who filed lawsuits against the City; (4) there

31a

was less of a concern about the causation problem and

opening the floodgates of frivolous retaliation claims

because the City's official policy of retaliation was

formed months earlier, there was little relation

between the "protected speech that prompted the

retaliatory policy and the criminal offense (public

disturbance) for which the arrest was made," and "it

was unlikely that the connection between the alleged

animus and injury will be weakened by an official's

legitimate consideration of speech"; and (5) the

plaintiff's speech—the right to petition—was "one of

the most precious of the liberties safeguarded by the

Bill of Rights" and was "high in the hierarchy of First

Amendment values." Id.

Although holding that plaintiff Lozman could sue

for retaliatory arrest "[o]n facts like these," the

Supreme Court emphasized that its holding was

limited to the alleged facts of Lozman's case and

cautioned that it was not deciding whether, as a

general matter, the causation standard in Mt.

Healthy or the lack-of-probable-cause element in

Hartman applied to retaliatory arrest claims. Id. at,

138 S. Ct. at 1954-55. The Supreme Court also left it

to this Court on remand to decide whether Lozman "is

ultimately entitled to relief or even a new trial." Id. at,

138 S. Ct. at 1955. Because the Supreme Court had

only assumed that there was an official retaliatory

policy and that the arrest was taken pursuant to that

official city policy, the Supreme Court stated that on

remand, among other matters, this Court may wish to

consider:

32a

(1) whether any reasonable juror could find that

the City actually formed a retaliatory policy to

intimidate Lozman during its June 2006 closeddoor session;

(2) whether any reasonable juror could find that

the November 2006 arrest constituted an official

act by the City; and

(3) whether,

under Mt. Healthy, the City has

proved that it would have arrested Lozman

regardless of any retaliatory animus—for

example, if Lozman's conduct during prior city

council meetings had also violated valid rules as

to proper subjects of discussion, thus explaining

his arrest here. Id.

F. 2019 Nieves: First Amendment Retaliatory

Arrest Claims Generally Require the Absence

of Probable Cause

Shortly after Lozman, the Supreme Court had an

opportunity to decide the question that it had left open

in that case: which standard, the Mt. Healthy

standard or the Hartman standard, should govern a §

1983 First Amendment retaliatory arrest case. In this

case, Nieves, the Court opted for the Hartman test:

the presence of probable cause will typically

invalidate a First Amendment retaliatory arrest

claim. Nieves, 587 U.S. at 139 S. Ct. at 1723-24, 1726.

The Court explained that because, generally

speaking, "retaliatory arrest claims involve [the same]

causal complexities akin to those" in Hartman, which

concerned a First Amendment claim based on a

retaliatory criminal prosecution, likewise "[t]he

33a

presence of probable cause should generally defeat a

First Amendment retaliatory arrest claim." Id.

In Nieves, plaintiff Bartlett was arrested by two

police officers, Luis Nieves and Bryce Weight, for

disorderly conduct and resisting arrest during a

rowdy winter sports festival held in Alaska. Id. at, 139

S. Ct. at 1720-21. According to Officer Nieves, he was

speaking with a group of festival attendees when a

seemingly intoxicated Bartlett started shouting at the

attendees not to talk to the police. Id. at, 139 S. Ct. at

1720. When Officer Nieves approached him, Bartlett

yelled at Officer Nieves to leave. Id. Rather than

escalate the situation, Officer Nieves left. Id. Bartlett

disputed that account, claiming that he was not drunk

and did not yell at Officer Nieves. Id.

Officer Weight stated that, several minutes later,

Bartlett approached him in an aggressive manner

while Officer Weight was questioning a minor about

underaged drinking, stood between Officer Weight

and the minor, and yelled with slurred speech that

Officer Weight should not speak with the minor. Id.

When Bartlett stepped toward him, Officer Weight

pushed Bartlett back. Id. Officer Nieves saw the

confrontation and initiated Bartlett's arrest. Id. at ,

139 S. Ct. at 1720-21. When Bartlett was slow to

comply, the officers forced him to the ground and

threatened to tase him. Id. at, 139 S. Ct. at 1721.

Bartlett denied being aggressive and claimed that he

stood close to Officer Weight in order to speak over the

music and was slow to comply because he did not want

to aggravate a back injury. Id. After being handcuffed,

Bartlett claimed that Officer Nieves said: "Bet you

34a

wish you would have talked to me now." Id. (alteration

accepted). The officers then took Bartlett to a holding

tent and charged him with disorderly conduct and

resisting arrest. Id. After a few hours, Bartlett was

released from custody, and the state later dismissed

the criminal charges against him. Id.

Subsequently, in a § 1983 action, Plaintiff Bartlett

sued the officers for violation of his First Amendment

rights by arresting him in retaliation for his speech—

his refusal to speak with Officer Nieves earlier in the

evening and his intervention in Officer Weight's

discussion with the minor. Id. The officers stated that

they arrested Bartlett because he interfered with an

investigation and initiated a physical confrontation

with Officer Weight. Id. The district court granted

summary judgment to the officers because (1) "the

officers had probable cause to arrest Bartlett," and (2)

"the existence of probable cause precluded Bartlett's

First Amendment retaliatory arrest claim." Id. The

Ninth Circuit disagreed, holding that Bartlett had

presented enough evidence that his speech was a "butfor cause" of the arrest. Bartlett v. Nieves, 712 F.

App'x 613, 616 (9th Cir. 2017) (unpublished).

In Nieves, the Supreme Court reversed the Ninth

Circuit and held "[b]ecause there was probable cause

to arrest Bartlett, his retaliatory arrest claim fails as

a matter of law." Nieves, 587 U.S. at , 139 S. Ct. at

1728. The Court acknowledged that retaliatory

arrests cases do not present a "presumption of

prosecutorial regularity" or "multiple government

actors," which are factors that are found in retaliatory

prosecution cases and support a probable cause

35a

standard. Id. at, 139 S. Ct. at 1724. Nonetheless, the

Court concluded that, like in retaliatory prosecution

cases, the causal inquiry in retaliatory arrests cases is

complex because "protected speech is often a 'wholly

legitimate consideration' for officers when deciding

whether to make an arrest." Id. at , 193 S. Ct. at 172324. Thus, the Court concluded that "[t]he plaintiff

pressing a retaliatory arrest claim must plead and

prove the absence of probable cause for the arrest." Id.

In addition, the Supreme Court in Nieves reasoned

that, "'[l]ike retaliatory prosecution cases, evidence of

the presence or absence of probable cause for the

arrest will be available in virtually every retaliatory

arrest case.'" Id. at, 139 S. Ct. at 1724 (quoting

Reichle, 566 U.S. at 668, 132 S. Ct. at 2095). "And

because probable cause speaks to the objective

reasonableness of an arrest, its absence will—as in

retaliatory prosecution cases—generally provide

weighty evidence that the officer's animus caused the

arrest, whereas the presence of probable cause will

suggest the opposite." Id. (internal citation omitted).

The Supreme Court therefore concluded that "[t]he

presence of probable cause should generally defeat a

First Amendment retaliatory arrest claim." Id. at, 139

S. Ct. at 1726. On the other hand, the Supreme Court

also instructed that if the plaintiff demonstrates the

absence of probable cause, "the Mt. Healthy test

governs: The plaintiff must show that the retaliation

was a substantial or motivating factor behind the

arrest, and, if that showing is made, the defendant can

prevail only by showing that the arrest would have

been initiated without respect to retaliation." Id. at,

36a

139 S. Ct. at 1725 (internal citations, alterations, and

quotation marks omitted).

Examining specifically the arrest of the plaintiff

Bartlett, the Supreme Court in Nieves concluded that,

"[b]ecause there was probable cause to arrest

[plaintiff] Bartlett, his retaliatory arrest claim fails as

a matter of law." Id. at, 139 S. Ct. at 1728. In reaching

this conclusion, the Supreme Court examined the two

"common law torts that provide the closest analogy to

retaliatory arrest claims": false imprisonment and

malicious prosecution. Id. at, 139 S. Ct. at 1726

(internal quotation marks omitted). Although the

parties disputed which tort was the better analog, the

Supreme Court concluded that both common law torts

suggested the same result, which is that a plaintiff

must show the absence of probable cause. Id. The

Supreme Court explained that "[i]t has long been

settled law that malicious prosecution requires

proving the want of probable cause." Id. (internal

quotation marks omitted). And for a false

imprisonment claim, "the presence of probable cause

was generally a complete defense for peace officers."

Id.13 Relying in part on these two common law

analogs, the Supreme Court held the defendant

officers were entitled to summary judgment on

plaintiff Bartlett's § 1983 First Amendment claims for

"At common law, peace officers were privileged to make

warrantless arrests based on probable cause of the commission

of a felony or certain misdemeanors." Nieves, 587 U.S. at, 139 S.

Ct. at 1726. "Although the exact scope of the privilege varied

somewhat depending on the jurisdiction, the consistent rule was

that officers were not liable for arrests they were privileged to

make based on probable cause." Id. at, 139 S. Ct. at 1727.

37a

retaliatory arrest because there was probable cause to

arrest him. Id. at, 139 S. Ct. at 1726-28.

One final observation about Nieves. Although

probable cause defeated plaintiff Bartlett's retaliatory

arrest claim, the Supreme Court issued a caveat,

albeit in dicta, about that holding. The Supreme Court

explained that, although probable cause generally

defeats a retaliatory arrest claim, "a narrow

qualification is warranted for circumstances where

officers have probable cause to make arrests, but

typically exercise their discretion not to do so." Id. at,

139 S. Ct. at 1727.14 In those types of cases, "an

unyielding requirement to show the absence of

probable cause could pose a risk that some police

officers may exploit the arrest power as a means of

suppressing speech." Id. (internal quotation marks

omitted).

Therefore, in Nieves the Supreme Court carved out

a narrow exception to "the no-probable-cause

requirement." Id. The exception applies "when a

plaintiff presents objective evidence that he was

14 The

Supreme Court noted that given the present power of

police officers to make warrantless arrests for misdemeanors for

even very minor offenses, such as jaywalking, the existence of

probable cause for an arrest on such an offense would do little

to disprove that a retaliatory motive prompted the arrest for an

arrestee who had, for example, vocally complained about police

conduct. Nieves, 587 U.S. at , 139 S. Ct. at 1727. In such a

circumstance, the no-probable-cause pleading requirement

would not apply to a plaintiff who showed that similarly

offending individuals who had not engaged in protected speech

had not been arrested by that officer for the same violative

conduct. Id.

38a

arrested when otherwise similarly situated

individuals not engaged in the same sort of protected

speech had not been." Id. The Supreme Court stated

that the plaintiff's showing of such objective evidence

would address the causal concern that non-retaliatory

reasons prompted the arrest and avoid a subjective

inquiry into the officer's individual statements and

motivations. Id. If the plaintiff makes this requisite

"objective evidence" showing that others similarly

situated were not arrested by the individual officer,

the plaintiff's First Amendment retaliatory arrest

claim may move forward "in the same manner as

claims where the plaintiff has met the threshold

showing of the absence of probable cause." Id.15

15 Chief Justice Roberts wrote the opinion of the Nieves Court,

joined in full by Justices Breyer, Alito, Kagan, and Kavanaugh,

and by Justice Thomas in all but the part regarding the selective

arrest exception. Justice Gorsuch concurred in part and

dissented in part, concluding that there is no basis in law to graft

a no-probable-cause requirement onto a § 1983 First Amendment

retaliatory arrest claim. Nieves, 587 U.S. at, 139 S. Ct. at 173031. In Justice Gorsuch's view, the absence of probable cause is

not an absolute requirement for a First Amendment retaliatory

arrest claim and its presence is not an absolute defense. Id. at,

139 S. Ct. at 1732.

Nevertheless, Justice Gorsuch suggested that probable cause

could bear on a retaliatory arrest claim in at least two ways: (1)

to show causation; and (2) in light of separation of powers and

federalism concerns where state and federal executive officials,

not judges, are vested with the decision to bring criminal

charges. Id. at, 139 S. Ct. at 1732-34. As to causation, Justice

Gorsuch noted the opinion's exception for evidence of selective

arrests and also the open question of whether direct evidence of

discrimination, such as a prosecutor's admission of

discriminatory purpose, might be enough to allow a retaliatory

39a

To recap, the presence of probable cause will (1)

defeat a § 1983 First Amendment retaliation claim for

an underlying retaliatory criminal prosecution,

Hartman, and also (2) will generally defeat a § 1983

First Amendment retaliation claim for an underlying

retaliatory arrest, Nieves, except (a) when the

"unique" five factual circumstances in Lozman exist

together, or (b) where the plaintiff establishes

retaliation animus and presents "objective evidence"

that he was arrested for certain conduct when

otherwise similarly situated individuals (committing

the same conduct) had not engaged in the same sort of

protected speech and had not been arrested, Nieves.

While these Supreme Court decisions provide

significant guidance, the Supreme Court has not

addressed a § 1983 First Amendment claim

predicated on a retaliatory civil lawsuit. Although

there is scant circuit precedent, we discuss those few

decisions because they demonstrate how circuit courts

have assessed what a plaintiff must prove to establish

the required causal connection in § 1983 First

Amendment retaliation cases when predicated on civil

lawsuits.

G. Other Circuit Precedent

We have located only three circuit decisions

involving § 1983 First Amendment retaliation claims

predicated on a retaliatory civil lawsuit or

counterclaim. See Greenwich Citizens Comm., Inc. v.

Ctys. of Warren & Wash. Indus. Dev. Agency, 77 F.3d

arrest claim to proceed in cases where probable cause exists for

the arrest. Id. at, 139 S. Ct. at 1733.

40a

26 (2d Cir. 1996) (counterclaim); Harrison v.

Springdale Water & Sewer Comm'n, 780 F.2d 1422

(8th Cir. 1986) (counterclaim); Bell v. Sch. Bd. of

Norfolk, 734 F.2d 155 (4th Cir. 1984) (civil declaratory

judgment action). Although Mt. Healthy was decided

in 1977 well before these decisions, two of them,

Harrison and Bell, do not cite Mt. Healthy. And, of

course, all three cases were decided long before the

probable cause decisions in Hartman, Lozman, and

Nieves. Nonetheless, each of the three circuits gave

some consideration to whether the underlying civil

action was frivolous in deciding whether the § 1983

plaintiff had shown the requisite causation between

the defendant's retaliatory animus and the plaintiff's

injury.

For example, in Greenwich, the plaintiffs filed a

state court lawsuit against a county government and

other defendants in an effort to stop a waste

incinerator project. Greenwich, 77 F.3d at 28. The

plaintiffs' lawsuit caused the market for the

municipal bonds (to fund the project) to deteriorate.

Id. The defendants filed various state tort

counterclaims against the plaintiffs. Id. at 29. The

Greenwich plaintiffs then filed a separate § 1983 First

Amendment

retaliation

claim,

alleging

the

defendants' state court counterclaims were filed in

retaliation to the plaintiffs' exercise of their protected

First Amendment rights. Id. The jury agreed, but the

Second Circuit remanded for a new trial.

As to causation, the Second Circuit concluded that

the § 1983 plaintiffs had shown that the defendants

"would not have filed their state court counterclaims

41a

'but for' the Greenwich plaintiffs' filing of their state

court lawsuit." Id. at 31 (applying the Mt. Healthy

causation test). However, the Second Circuit held that

the § 1983 plaintiffs were also "required to persuade

the jury that the [defendants'] counterclaims were

filed, not as a legitimate response to litigation, but as

a form of retaliation, with the purpose of deterring the

[plaintiffs'] exercise of First Amendment freedoms."

Id. (emphasis added). The Second Circuit posited that

one way the plaintiffs could prove that the defendants

acted with a retaliatory purpose was to show that the

defendants'

state

court

counterclaims

were

"frivolous." Id. at 31 n.5. The Second Circuit

determined that the district court erred by omitting

from the jury charge "the element of retaliatory intent

in describing what the Greenwich plaintiffs had to

prove. Id. at 3316; see also Gorman-Bakos v. Cornell

Coop Extension of Schenectady Cty., 252 F.3d 545, 556

(2d Cir. 2001).

Similarly, in evaluating the plaintiffs' First

Amendment retaliation claim in Harrison, the Eighth

Circuit considered whether the defendant's

counterclaim was frivolous. Harrison, 780 F.2d at

1424. The plaintiffs had sued the defendant Sewer

Commission in state court for injunctive relief and

damages from sewage discharge in the creek near

their blueberry farm. Id. The Commission filed a

The Second Circuit noted that the defendants "do not

advance, nor do we consider, the argument that they may not

be held liable for filing their counterclaims under the theory

that such liability would impair their own First Amendment

rights to conduct legitimate litigation." Greenwich, 77 F.3d at

33 n.6.

42a

counterclaim to condemn and take the plaintiffs'

property. Id. The plaintiffs then filed a separate §

1983 action in federal court, contending that the

Commission's condemnation counterclaim was filed in

retaliation for the plaintiffs' bringing their state court

lawsuit against the Commission. Id. at 1425, 1428.17

Reversing the district court's dismissal, the Eighth

Circuit held that the plaintiffs had stated a § 1983

cause of action for infringement of their First

Amendment "right of access to the courts." Id. at 142628. Pivotal to the Eighth Circuit's ruling was the fact

that, notwithstanding its filing of a state court

condemnation counterclaim to take plaintiffs'

property, the Commission in fact had no plan to use

the plaintiffs' property, but instead the counterclaim

"was filed as a tactical move" to pressure the plaintiffs

into settling their civil damages lawsuit against the

Commission. Id. at 1428. To the Eighth Circuit, these

facts rendered the Commission's counterclaim

"frivolous." Id. at 1428.

In Bell, the Fourth Circuit similarly considered

whether the defendant school board's prior civil action

was a legitimate or "genuine" strategy in assessing a

plaintiff's subsequent § 1983 First Amendment

retaliation claim. Bell, 734 F.2d at 156, 157 n.6. In

Bell, at a public meeting, the plaintiff opposed the

school board's new neighborhood plan. Id. The school

board filed a declaratory judgment suit naming the

plaintiff as a representative of the class opposed to the

17 The Sewer Commission was a public agency created by the City

of Springdale, Arkansas. Harrison, 780 F.2d at 1424.

43a

new plan. Id. The plaintiff objected to being a class

representative and requested dismissal. Id. The

school board agreed to the dismissal. Id. at 156-57.

The plaintiff then filed a § 1983 action alleging the

school board's suit was brought to deter her from

speaking out against the school plan. Id. at 157.

Affirming the district court's dismissal of

plaintiff's § 1983 action, the Fourth Circuit pointed

out that (1) when the plaintiff advised she did not

want to be a class representative, the board dismissed

her, and (2) the board's declaratory judgment lawsuit

"appears to have been part of a genuine strategy

aimed at acquiring a court determination of the

validity of the plan." Id. at 157 & n.6.18

In sum, even before the probable cause decisions in

Hartman and Nieves, other circuits were considering

whether the underlying civil lawsuit was frivolous

before allowing a plaintiff to move forward on a § 1983

18 The Town also cites the Fifth Circuit's decision in Johnson v.

La. Dep't of Agric., 18 F.3d 318, 319 (5th Cir. 1994), but the

underlying prosecution in that First Amendment retaliation case

reads more like a criminal prosecution, than a civil action. In

that case, the plaintiff Johnson operated a crop-dusting business,

and the Louisiana Department of Agriculture ("Department")

charged the plaintiff with violations of pesticide laws, imposed

penalties and revoked the plaintiff's license to apply pesticides.

Id. at 319-20. The plaintiff appealed to a Louisiana state court

where the liability findings were generally affirmed although the

sanctions were often reduced. Id. at 320. Later, plaintiff Johnson

filed a § 1983 First Amendment retaliation claim, alleging the

Department and others had prosecuted him in retaliation for his

protected speech and because he refused to make a large enough

contribution to the Agriculture commissioner's reelection

campaign.

44a

First Amendment retaliation claim predicated on that

civil lawsuit. With this extensive background, we

return to this case.

III. ISSUES ON APPEAL

The parties primarily focus on two issues: (1)

whether plaintiff DeMartini in her § 1983 First

Amendment retaliation claim predicated on an

underlying civil lawsuit is required to plead and prove

the absence of probable cause for that civil lawsuit;

and (2) if so, whether the Town lacked probable cause

to initiate its civil RICO lawsuit against DeMartini.

DeMartini argues that her § 1983 First

Amendment retaliation claim is governed by Lozman,

which held that plaintiff Lozman could bring a § 1983

First Amendment retaliation claim for retaliatory

arrest even though there was probable cause for his

arrest. DeMartini contends that the circumstances of

her case are like those in Lozman because the record

amply demonstrates the Town adopted an official

municipal policy of retaliation against her. DeMartini

argues Hartman's and Nieves's probable cause

requirement does not apply because the Town

unanimously voted to bring its RICO civil action "for

the sole purpose of stopping the protected activity" of

filing public records requests and lawsuits.

Alternatively, even if Hartman and Nieves's

probable cause requirement applies, DeMartini

argues that the Town lacked probable cause for its

RICO lawsuit. DeMartini contends that the Town's

RICO action was "baseless" and frivolous given

Eleventh Circuit precedent that a threat to file a civil

lawsuit is not a valid RICO predicate.

45a

Not surprisingly, the Town responds that the

"causation landscape" here is more similar to that in

Hartman because attorneys here functioned in the

same role as that of a prosecutor in Hartman. Just as

the dual actors in Hartman, the individuals filing the

civil lawsuit (outside counsel) were not the same

individuals allegedly harboring the animus (the

Town's Commissioners). The Town also stresses,

however, that the Supreme Court limited Lozman to

its unique factors, several of which are missing here.

And like the Supreme Court did in Nieves, this Court

should look to the closest common law analog to

DeMartini's First Amendment retaliation claim based

on a civil lawsuit, which is a claim for "wrongful

institution of legal process" and also requires proving

the want of probable cause.

If DeMartini is correct that the Town lacked

probable cause to file its civil RICO lawsuit, we would

not have to address whether the presence of probable

cause defeats DeMartini's § 1983 First Amendment

retaliation claim as a matter of law. Thus, we first

examine whether the Town had probable cause to file

its civil RICO lawsuit.

IV. TOWN'S PROBABLE CAUSE FOR ITS

CIVIL LAWSUIT

"Probable cause to institute civil proceedings

requires no more than a 'reasonabl[e] belie[f] that

there is a chance that [a] claim may be held valid upon

adjudication.'" Prof'l Real Estate Inv'rs, Inc. v.

Columbia Pictures Indus., Inc., 508 U.S. 49, 62-63,

113 S. Ct. 1920, 1929, 123 L. Ed. 2d 611 (1993)

(alternations in original) (quoting Restatement

46a

(Second) of Torts § 675, cmt. E (Am. Law Inst. 1977)).

Therefore, "it is not necessary to show that the

instigator of a lawsuit was certain of the outcome of

the proceeding, but rather that he had a reasonable

belief, based on the facts and circumstances known to

him, in the validity of the claim." Mee Indus. v. Dow

Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 2010)

(quotation marks omitted). This standard, which

requires less certainty than probable cause as defined

in the criminal context, is "not a high bar to meet." Id.

at 1218.

To establish a RICO violation under §§ 1962(c) and

1964(c), the Town had to prove that DeMartini

engaged in "an enterprise . . . through a pattern . . . of

racketeering activity that included at least two

racketeering acts" that caused injury to the Town's

"business or property." See Ray v. Spirit Airlines, Inc.,

836 F.3d 1340, 1348 (11th Cir. 2016) (quotations

omitted). For RICO purposes, a "racketeering act"

must constitute a violation of one of the laws described

in 18 U.S.C. § 1961(1). Raney, 370 F.3d at 1087. Those

laws include extortion, mail fraud, and wire fraud,

among other crimes. 18 U.S.C. § 1961(1). In support of

its RICO action, the Town alleged that the RICO coconspirators had engaged in (1) extortion as defined

by the Hobbs Act, 18 U.S.C. § 1951, and (2) mail and

wire fraud in violation of 18 U.S.C. §§ 1341, 1343.

Importantly, prior to filing its RICO action, the

Town obtained substantial information that

supported a reasonable belief that CAFI, O'Boyle, the

O'Boyle Law Firm, and other individuals—including

DeMartini—had committed fraud through their

47a

participation in an extortionate scheme involving

fraudulent public records requests, false settlement

demands, and subsequent multiple lawsuits designed

to obtain attorney's fees as opposed to the requested

records. See Mee, 608 F.3d at 1211. Specifically, upon

resigning as Executive Director of CAFI, Chandler

provided sworn testimony to Sweetapple, the Town's

special counsel, indicating that CAFI, O'Boyle, the

O'Boyle Law Firm, and DeMartini were engaged in a

fraudulent and unlawful effort to extort money from

the Town via a public records litigation "windfall

scheme." As described by Chandler, the scheme

involved two steps: (1) pummeling the Town with

voluminous and intentionally vague public records

requests that were designed to elicit either no

response, anincomplete response, or an untimely

response, and then (2) demanding that the Town pay

an excessive settlement to avoid litigation under

Florida's public records law, including demanding

attorney's fees in excess of the fees and costs the

O'Boyle Law Firm actually incurred to settle the case.

Furthermore, Chandler specifically implicated

DeMartini in the scheme, describing to special counsel

Sweetapple her key role within CAFI and the O'Boyle

Law Firm, her importance to O'Boyle's operations,

and her direct participation in the extortionate

activities.

DeMartini does not dispute that employees of

CAFI and the O'Boyle Law Firm dumped thousands

of public records requests on the Town—costing the

Town $370,000 in attorney's fees. For a Town of about

1,000 people, those attorney's fees equaled about $370

48a

per resident. Nor does DeMartini contest that the

Town had hired an attorney—Gerald Richman—who

investigated the O'Boyle-led scheme for over a year.

Nor does DeMartini contest that the Town's

investigation kicked into high gear when Chandler

left his post as CAFI's Executive Director and

reported his concerns about CAFI's fraudulent

scheme to Town officials in extensive written and

videotaped statements. And DeMartini does not

dispute that Chandler gave detailed insight into the

scheme, including that CAFI was deliberately making

vague public records requests so that the O'Boyle Law

Firm could garner thousands of dollars in attorney's

fees.

Likewise, DeMartini fails to contest certain details

concerning what the Town knew about her personal

involvement in CAFI's scheme. For example,

DeMartini does not contest that she participated in

the O'Boyle-led scheme, with O'Boyle describing her

as his "left hand." Indeed, Chandler provided the

Town with emails showing DeMartini's alleged role at

CAFI and the O'Boyle Law Firm. Nor does DeMartini

deny that Chandler informed the Town's officials that

DeMartini was pressuring him to come up with 25

lawsuits per week and chastised him for his proposal

to refer CAFI's work to other law firms besides the

O'Boyle Law Firm. Nor does DeMartini deny that

Chandler told the Town that he was troubled by

CAFI's policy that permitted DeMartini—a nonlawyer—to authorize public record requests and

litigation.

49a

Instead, DeMartini makes two primary objections

to the district court's finding that the Town had

probable cause to file its civil RICO lawsuit: (1) the

Town should not have relied on Chandler's sworn

testimony because he might not be viewed as a

credible witness in the case; and (2) settled precedent

in the Eleventh Circuit clearly established that

frivolous litigation can never serve as a Hobbs Act

violation, even if the plaintiff was using the litigation

for extortionate purposes. Neither contention has

merit.

As to the first objection, while it is true that the

Town might rightly have considered how a jury might

view Chandler's testimony in a RICO lawsuit—given

that he was previously a vocal supporter of public

records requests and had sued municipalities for

public records requests in his past role as a director at

CAFI—the Town and its outside counsel never

questioned Chandler's veracity or reliability about the

inner workings of CAFI. And it was this insideknowledge that gave great heft to the Town's

allegations in its RICO complaint. Indeed, given that

Chandler had worked as CAFI's Executive Director,

he had first-hand knowledge of O'Boyle and

DeMartini's scheme, and his affidavits corroborated

much of what the Town had already suspected after

being the target of over a thousand public records

requests from CAFI. Accordingly, because Chandler

had a strong basis for his personal knowledge, the

Town reasonably relied on his sworn statements to

form their reasonable belief that the whole scheme

was designed solely to extort monies from the public

coffers.

50a

As to DeMartini's second objection, she argues that

this Court's precedent in Pendergraft and Raney

precluded the Town's theory that a RICO action could

be based on DeMartini's litigation activity, and thus

eliminated any probable cause it may have had for

asserting a RICO claim. We reject DeMartini's

argument. Pendergraft and Raney made it unlikely,

but not impossible, for the Town to succeed. The Town

had a reasonable belief that there was a legitimate

and material distinction between their RICO claim

and the ones that came before it in that O'Boyle,

DeMartini, and others had abused their statutory

right to request public documents from the

government "on a grand scale." Gulf Stream, 654 F.

App'x at 444. Given the huge number of requests and

the obvious pattern that they were being filed to strip

the Town of money while allowing the O'Boyle Law

Firm to profit handsomely, it was not unreasonable

for the Town to believe in good faith that this Court

might carve out an exception to the general rule. See

Prof'l Real Estate Inv'rs., 508 U.S. at 65, 113 S. Ct. at

1930-31 ("Even though it did not survive PRE's

motion for summary judgment, Columbia's copyright

action was arguably 'warranted by existing law' or at

the very least was based on an objectively 'good faith

argument for the extension, modification, or reversal

of existing law.'" (quoting Federal Rule of Civil

Procedure 11)). In fact, the Town cited to out-of-circuit

caselaw in which actual or threatened litigation was

acknowledged to be a component of the activities

giving rise to a RICO claim. Moreover, distinguishing

existing precedent is the essence of good lawyering.

See Armco, Inc. v. S. Rock, Inc., 778 F.2d 1134, 1138

51a

(5th Cir. 1985) (finding that the defendant had

probable cause to file a civil lawsuit because, even

though it suspected "it would eventually lose," the

defendant plausibly distinguished existing case law).

The Town had a mountain of fraudulent and

extortionate conduct to present in the hopes of

creating an exception to the general rule in

Pendergraft and Raney. Consequently, there is no

merit to DeMartini's contention that the Town lacked

a reasonable belief that it might prevail in the RICO

lawsuit.

Simply put, the Town did not need to be certain of

success on its civil RICO claim in order to have

probable cause to assert it. See Mee, 608 F.3d at 1211.

Our inquiry is whether all of the facts and

circumstances available to the Town—including

Chandler's extensive sworn testimony—gave the

Town a reasonable belief that it had a tenable RICO

claim against DeMartini. Id. We conclude the Town

had such a reasonable belief.

Although the district court and this Court

ultimately rejected the Town's proffered distinction,

its argument was not unreasonable, as probable cause

may be based on "an objectively 'good faith argument

for the extension, modification, or reversal of existing

law.'" See Prof'l Real Estate Inv'rs, 508 U.S. at 65, 113

S. Ct. at 1930-31. Consequently, the Town had a

reasonable basis to believe its claim was valid.19

19 We note that our prior panel decision now having decided that

a civil RICO claim does not lie here based on the facts of this case,

the Town would presumably lack probable cause should it seek

again to file another civil RICO lawsuit against persons filing

52a

Indeed, while this Court affirmed on appeal the

district court's dismissal of the Town and Wantman's

civil RICO complaint, we denied the defendants'

motion for sanctions under Federal Rule of Appellate

Procedure 38. Gulf Stream, 654 F. App'x at 445 n.7.

Rule 38 provides that "[i]f a court of appeals

determines that an appeal is frivolous, it may . . .

award just damages and single or double costs to the

appellee." Fed. R. App. P. 38. In so ruling, we rejected

defendants' argument that the appeal was frivolous in

light of Pendergraft and Raney. Gulf Stream, 654 F.

App'x at 445 n.7. For all of these reasons, we conclude

that the Town had probable cause to file the civil

RICO lawsuit.

V. WHETHER PROBABLE CAUSE DEFEATS

DEMARTINI'S RETALIATION CLAIM

Because the Town had probable cause to file its

civil RICO lawsuit, we must answer the final

question: whether the existence of probable cause for

a civil lawsuit defeats a § 1983 First Amendment

retaliation claim predicated on that underlying civil

lawsuit.

Based on the factors discussed in the Supreme

Court's Hartman and Nieves decisions, we conclude

that, as with § 1983 First Amendment retaliation

claims arising in the criminal prosecution and arrest

context, the presence of probable cause will generally

defeat a § 1983 First Amendment retaliation claim

public records requests and related lawsuits, even if the requests

were filed in bad faith with the motivation behind the claims

being to extort money.

53a

based on a civil lawsuit as a matter of law. See

Hartman, 547 U.S. at 260-61, 265-66, 126 S. Ct. at

1704, 1706-07; Nieves, 587 U.S. at, 139 S. Ct. at 1726.

This principle will particularly be apt when the

alleged retaliatory civil ligation by the government is

itself taken as a reasonable response to the plaintiff's

own litigation, or threat of litigation, against the

government. Just as a citizen may have the right to

sue the government, the government likewise has the

right, and duty, to engage in legitimate responsive

litigation to defend itself against such challenges.

In a First Amendment claim predicated on a

retaliatory civil lawsuit by the government, the

causation landscape is akin to that in Hartman

because an attorney (whether in-house or outside

counsel) has filed the underlying civil lawsuit.

Notably, before taking action here, the Town engaged

attorneys to investigate CAFI, O'Boyle, and

DeMartini's public records scheme. The involvement

of counsel widens the causation gap between any

alleged retaliatory animus by the Town and

DeMartini's injury. Counsel's pivotal role in advising

the Town that it had a good faith basis to sue supports

a requirement that DeMartini show the absence of

probable cause for the Town's underlying lawsuit in

order to establish that the Town's alleged animus

caused DeMartini's injury. Like the prosecutor in

Hartman who filed the criminal action, the

individuals recommending and filing the civil lawsuit

here (counsel) were not the same individuals who

allegedly harbored the retaliatory animus (the Town's

Commissioners).

54a

In fact, two separate outside attorneys, Robert

Sweetapple and Gerald Richman, conducted

investigations, evaluated the facts, and only then

independently recommended the filing of the civil

RICO lawsuit. Like the prosecutor in Hartman,

Sweetapple and Richman were obligated to exercise

their own individual judgment and were bound by the

Florida Rules of Professional Conduct. Specifically,

they were each (1) required to "exercise independent

professional judgment and render candid advice" to

the Town, (2) limited to the filing of a claim having "a

basis in law and fact . . . that is not frivolous," and (3)

prohibited from "us[ing] the law's procedures . . . to

harass and intimidate others." See R. Reg. Fla. Bar, 42.1, 4-3.1, Preamble.

Counsel's investigation, legal recommendation,

and filing of the RICO lawsuit widen the causal gap

between the Town's alleged animus and DeMartini's

injury. At bottom, as in Hartman, difficulty in proving

the more complex chain of causation here supports a

conclusion that a lack of probable cause is a necessary

element in DeMartini's § 1983 First Amendment

retaliation claim. As in retaliatory criminal

prosecution cases, the absence of probable cause is

necessary to bridge the gap between the defendant's

alleged animus and plaintiff's injury. See Hartman,

547 U.S. at 259, 126 S. Ct. at 1703 ("[T]he need to

prove a chain of causation from animus to injury, with

details specific to retaliatory-prosecutions cases, . . .

provides the strongest justification for the noprobable-cause requirement."). And as in Hartman,

the absence of probable cause will have high probative

force and adds little to no cost, as the facts

55a

surrounding the Town's prior civil RICO lawsuit are

already known by DeMartini.

In addition, in § 1983 First Amendment cases

predicated on a retaliatory civil lawsuit, the fact that

probable cause existed to bring the underlying civil

lawsuit shows that the defendant had a legitimate

interest in considering the plaintiff's speech in the

first place. For example, here, the protected speech

that the Town allegedly retaliated against here—the

nearly 2,000 abusive public records requests and 36

lawsuits—was the same conduct (or protected speech)

for which the Town had its own legitimate, objective

reasons and motivation for challenging by filing its

civil RICO lawsuit. Unlike in other retaliation cases,

in addition to having legal probable cause for its civil

RICO lawsuit, the Town had a legitimate, objective

factual reason and motivation for considering CAFI

and DeMartini's public records requests and lawsuits

in deciding to file the civil RICO lawsuit. The Town's

action was made in response to what it reasonably

believed were the abusive intent and practices

underlying CAFI and DeMartini's harassing public

records requests and related lawsuits. While public

records requests and lawsuits typically constitute

protected speech under the First Amendment, here

the Town had a legitimate interest and motivation in

protecting itself, its coffers, and its taxpaying

citizens—independent of any motivation to retaliate—

by litigation against CAFI and DeMartini.

To that end, it is clear that: (1) CAFI had filed

nearly 2,000 public records requests and 36 lawsuits;

(2) its requests were not designed to actually obtain

56a

the records but to enable CAFI to obtain money

through settlements and excessive attorney's fees;

and (3) the Town had spent $370,000 in attorney's fees

in responding to CAFI's requests and lawsuits, which

were bleeding the Town's coffers dry, one abusive

lawsuit at a time. Nor is this a case where the

government was attempting to thwart a citizen from

using public records laws to prevent the citizen from

validly obtaining public information. Neither CAFI

nor DeMartini have pointed to any public information

that the Town ever withheld or that they were unable

to obtain. Rather, given CAFI and DeMartini's

sustained pattern of abusive requests and lawsuits,

the Town's elected officials had a legitimate, objective

reason to take legal action in response to CAFI's

conduct—conduct that it reasonably believed was part

of an illegal and fraudulent scheme to improperly

extort settlement money and attorney's fees.

Further, that DeMartini's protected speech was a

"wholly legitimate consideration" for the Town when

deciding to file the civil RICO lawsuit also renders the

causation landscape more complex, just like it did in

Nieves. Indeed, as the Supreme Court recognized in

Nieves, where protected speech is a "wholly legitimate

consideration" for the government when deciding to

act, as when a subject's speech is itself a proper basis

for the arrest, "the causal inquiry is complex," such

that, generally speaking, probable cause is a

necessary element of a retaliatory arrest claim. See

Nieves, U.S. at, 139 S. Ct. at 1723-24 (internal

quotation marks omitted). Here, in considering its

available litigation responses to DeMartini, the Town

necessarily had to consider her record requests and

57a

lawsuits— protected speech though it may be—and

the surrounding circumstances. Therefore, like in

Nieves, the causal complexity warrants that a

plaintiff, like DeMartini, must plead and prove the

absence of probable cause for her First Amendment

retaliation claim to move forward. Otherwise, it would

be extremely difficult, if not impossible, to determine

whether the filing of the RICO lawsuit was caused by

the Town's legitimate consideration of the protected

speech, its alleged retaliatory animus, or both.

This type of First Amendment retaliation case—

one predicated on an underlying civil lawsuit that the

government had probable cause to bring—requires

our Court to address the intersection of (1) the

fundamental principles that prohibit the government

from retaliating against a citizen for exercising her

First Amendment rights to free speech and to petition

the government for redress; and (2) other principles

that define a government's access to the court to file

lawsuits to remedy wrongs on behalf of its citizens.

That CAFI's fraudulent scheme involved conduct

protected by the First Amendment does not, in and of

itself, mean that § 1983 automatically exposed the

Town to strict liability civil damages because it took

action to protect itself from that fraud. The imposition

of strict liability on the government when the

government has legitimate and objective reasons,

based on probable cause, to initiate the underlying

lawsuit is not warranted, as outlined above.

For all of these reasons, we conclude that applying

the objective, lack-of-probable-cause requirement to a

§ 1983 First Amendment retaliation case predicated

58a

on the filing of a civil lawsuit is appropriate because

it strikes the proper balance between protecting a

plaintiff's important First Amendment rights while,

at the same time, ensuring that the Town has a

similar ability to access the courts to protect itself and

its citizens from non-meritorious litigation. Therefore,

the presence of probable cause will generally defeat a

plaintiff's § 1983 First Amendment retaliation claim

predicated on an underlying civil lawsuit, or

counterclaim for that matter.

Lastly, we must discuss whether there are possible

exceptions to this general rule. To date, the Supreme

Court has not identified any exceptions to the noprobable-cause requirement in § 1983 First

Amendment retaliation claims predicated on criminal

prosecutions. Arguably, retaliation claims predicated

on prior civil lawsuits would not be subject to

exceptions either.

We recognize, however, that the Supreme Court

has, in two cases, identified potential exceptions to the

no- probable-cause requirement in § 1983 First

Amendment retaliation claims predicated on a

criminal arrest. First, in Nieves, the Supreme Court

acknowledged a potential exception when a

retaliatory-arrest plaintiff not only establishes the

arresting officer's retaliatory animus but also

presents objective evidence that the plaintiff was

arrested when people who had committed the same

conduct, but who had not engaged in the same sort of

protected speech, had not been arrested by that

officer. Nieves, 587 U.S. at, 139 S. Ct. at 1727. Second,

in Lozman, the Supreme Court delineated five

59a

"unique" factual circumstances, which, if proven,

would combine together to create an exception to the

general no-probable-cause requirement for a plaintiff

bringing a First Amendment retaliation claim

predicated on retaliatory arrest. Lozman, 585 U.S. at,

138 S. Ct. at 1949, 1954-55.

Whatever role these exceptions, articulated in a

retaliatory arrest context, might play in a case in

which the plaintiff is alleging that a retaliatory civil

lawsuit has been filed against her, it is clear they play

no role here. As to any Nieves exception, there is no

claim or evidence that other individuals engaged in

similar conduct, without ramifications, as did

DeMartini and CAFI when they carried out the

fraudulent public records request scheme.

And, in any event, Lozman is so materially

different from this case that its five-pronged exception

would not apply either. Pivotal factual ingredients to

Lozman's holding are missing here. In Lozman, the

speech allegedly retaliated against—the prior open

meeting lawsuit and criticisms of city officials—

occurred five months earlier and was not the same

conduct that, the defendant City claimed, gave rise to

Lozman's arrest. See id. at, 138 S. Ct. at 1949, 195455. The Lozman Court found this fact persuasive

because it circumvented the difficulties in the type of

retaliation claims the Supreme Court had been

concerned about, that is, arrests very close in time to

the protected speech, where it would be difficult, if not

impossible, to tell whether the arrest "was caused by

60a

the officer's legitimate or illegitimate consideration of

speech."20 Id. at, 138 S. Ct. at 1953.

Because the speech the Town allegedly retaliated

against here—the public records requests and

subsequent lawsuits—was the same protected speech

for which the Town filed a civil lawsuit supported by

probable cause, DeMartini's retaliation claim is

precisely the type of claim that the Supreme Court in

Lozman was concerned would prove indecipherable

for purposes of proving causation and therefore would

create a serious risk of "dubious" First Amendment

retaliatory claims. See id.

In addition, the Supreme Court assumed for

purposes of its decision that the City's ordering of

Lozman's arrest was not a legitimate response to

Lozman's five-months-earlier open meetings lawsuit

and criticisms. As the Supreme Court explained, "it is

difficult to see why a city official could have

legitimately considered [at the time of arrest] that

Lozman had, months earlier, criticized city officials or

filed a lawsuit against the City." Id. at, 138 S. Ct. at

1954. In contrast, the Town here had a legitimate,

non-retaliatory litigation purpose in considering CAFI

and DeMartini's public records requests and lawsuits

at the time it filed its civil RICO lawsuit. Namely, to

stem the hemorrhaging of public resources that

DeMartini's bad faith requests had caused. Further,

the Town engaged attorneys who investigated,

20 The separation in time and type of conduct would purportedly

allow the jury to readily decide if plaintiff Lozman's arrest was

due to Lozman's conduct at the meeting or due to Lozman's prior

lawsuit and criticisms five months earlier.

61a

recommended, and filed the Town's RICO lawsuit.

There was no similar counsel in Lozman to complicate

the causation chain.

Accordingly, because the factual circumstances in

Lozman are so materially distinguishable from this

case and because the Supreme Court carefully limited

its Lozman decision to its "unique facts," we conclude

that Lozman's exception to the no-probable cause

requirement does not help DeMartini's First

Amendment retaliation claim, even if it were

potentially applicable.

For all of these reasons and under the totality of

the circumstances, we conclude that DeMartini has

not shown that the district court erred in granting

summary judgment to the Town on her § 1983 First

Amendment retaliation claim predicated on the

Town's civil RICO lawsuit.21

21 Separate from the elements of a First Amendment retaliation

claim, all plaintiffs who sue a municipality under § 1983 must

show that execution of the municipality's policy or custom caused

the alleged injury. Monell v. Dep't of Soc. Servs. of New York, 436

U.S. 658, 694-95, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978);

see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106

S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986) (explaining that, in

order to recover under § 1983, the plaintiff suing the

municipality must show that the "municipality has as officially

sanctioned or ordered" the action causing the alleged injury). A

plaintiff may show a municipality's policy or custom in several

ways, including (1) showing the municipality's action was "an

official policy enacted by [the municipality's] legislative body"; (2)

demonstrating that a "final policymaker[] . . . acquiesced in a

longstanding practice that constitutes the entity's standard

operating procedure; or (3) proving "a subordinate public official

[made] an unconstitutional decision" that was "then adopted by

62a

Our conclusion—that probable cause generally

defeats a First Amendment retaliation claim

predicated on an underlying civil lawsuit—is also

confirmed by common-law doctrine. The Supreme

Court has instructed that, "[w]hen defining the

contours of a claim under § 1983, we look to commonlaw principles that were well settled at the time of its

enactment." Nieves, 587 U.S. at , 139 S. Ct. at 1726

(quotation marks omitted); Manuel v. City of Joliet,

Ill., 580 U.S. at , 137 S. Ct. 911, 921, 197 L. Ed. 2d 312

(2017) (stating that common-law principles guide the

definition of § 1983 claims); Kalina v. Fletcher, 522

U.S. 118, 123, 118 S. Ct. 502, 506, 139 L. Ed. 2d 471

(1997) (examining common-law doctrine when

identifying the elements of the § 1983 cause of action

and defenses available to state actors).

The Supreme Court has told us that when § 1983

was enacted in 1871, there was no common-law tort

for retaliatory arrest based on First Amendment

protected speech, and thus we should look to the

common-law torts that provide the "closest analogy"

to such retaliatory arrest claims. See Nieves, 587 U.S.

at, 139 S. Ct. at 1726 (internal quotation marks

omitted). In Nieves, rather than deciding whether a

someone who does have final policymaking authority." Hoefling

v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016) (quotation

marks omitted).

In this case, DeMartini relies on the first method to proceed

against the Town under Monell. Because our probable cause

holding decides this case, we need not, and do not, address

whether the Town's vote did or did not satisfy the threshold

Monell showing of an existence of an official policy.

63a

common-law malicious prosecution claim or a false

imprisonment claim was the better analog to a

retaliatory arrest claim, the Supreme Court concluded

that the presence of probable cause defeated both

types of claims at common law and would generally

defeat a First Amendment retaliatory arrest claim. Id.

at, 139 S. Ct. at 1726-27.

Similarly, in DeMartini's case, there was no

common-law tort for a First Amendment retaliatory

civil lawsuit claim when § 1983 was enacted. Yet

Nieves's guidance leads us to ask what "common law

tort[] . . . provide[s] the 'closest analogy'" to a § 1983

First Amendment retaliation claim predicated on an

underlying retaliatory civil lawsuit? See Nieves, 587

U.S. , 139 S. Ct. at 1726 (quoting Heck v. Humphrey,

512 U.S. 477, 484, 114 S. Ct. 2364, 2371, 129 L. Ed.

2d 383 (1994)).

The closest analogy to DeMartini's § 1983 First

Amendment retaliation claim is a "wrongful civil

proceedings" claim. See Prof'l Real Estate Inv'rs, 508

U.S. at 62, 113 S. Ct. at 1929. As the Supreme Court

has explained, "[t]he notion of probable cause, as

understood and applied in the commonlaw tort of

wrongful civil proceedings, requires the plaintiff to

prove that the defendant lacked probable cause to

institute an unsuccessful civil lawsuit and that the

defendant pressed the action for an improper,

malicious purpose." Id. Likewise, the Restatement

(Second) of Torts defines the tort of wrongful civil

proceedings as:

One who takes an active part in the initiation,

continuation or procurement of civil proceedings

64a

against another is subject to liability to the other

for wrongful civil proceedings if (a) he acts without

probable cause, and primarily for a purpose other

than that of securing the proper adjudication of the

claim in which the proceedings are based, and (b)

except when they are ex parte, the proceedings

have terminated in favor of the person against

whom they are brought.

§ 674 (Am. Law. Inst. 1977) (emphasis added).

It has long been settled law, and DeMartini does

not dispute, that wrongful civil proceedings claims

require proving the absence of probable cause. See T.

Cooley, Law of Torts 187-89 (1879); Prof'l Real Estate

Inv'rs, 508 U.S. at 63, 113 S. Ct. at 1929 ("Because

the absence of probable cause is an essential element

of the tort, the existence of probable cause is an

absolute defense." (citing Crescent City Live Stock Co.

v. Butchers' Union Slaughter-House Co., 120 U.S.

141, 149, 7 S. Ct. 472, 476, 30 L. Ed. 614 (1887)). Our

holding

here—that

probable

cause

defeats

DeMartini's § 1983 First Amendment retaliation

claim— is also consistent with, and supported by, this

common law.

VI. FLORIDA MALICIOUS PROSECUTION

On appeal, DeMartini also argues that the district

court erred in granting summary judgment to

Wantman on her malicious prosecution claim under

Florida law. Although DeMartini agrees that the "lack

of probable cause" is a necessary element of a Florida

malicious prosecution claim, she nevertheless argues

that Wantman lacked such probable cause to file the

civil RICO lawsuit against her.

65a

To prevail on a common-law tort of malicious

prosecution under Florida law, a plaintiff must

establish the following elements:

(1) an original criminal or civil judicial proceeding

against the present plaintiff was commenced or

continued; (2) the present defendant was the legal

cause of the original proceeding against the

present plaintiff as the defendant in the original

proceeding; (3) the termination of the original

proceeding constituted a bona fide termination of

that proceeding in favor of the present plaintiff; (4)

there was an absence of probable cause for the

original proceeding; (5) there was malice on the

part of the present defendant; and (6) the plaintiff

suffered damage as a result of the original

proceeding.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352,

1355 (Fla. 1994) (emphasis added); Durkin v. Davis,

814 So. 2d 1246, 1248 (Fla. Dist. Ct. App. 2002); see

Paez, 915 F.3d at 1291-92 (discussing these same

elements of the common-law tort of malicious

prosecution available under Florida law). The failure

of a plaintiff to establish any one of these six elements

is fatal to a claim of malicious prosecution. Mancusi,

632 So. 2d at 1355. Thus, as a necessary element, the

existence of probable cause will defeat a claim for

malicious prosecution. Id.

Under Florida law, to show probable cause to

initiate a civil proceeding, "it is not necessary to show

that the instigator of a lawsuit was certain of the

outcome of the proceeding, but rather that he had a

reasonable belief, based on facts and circumstances

66a

known to him, in the validity of the claim." Wright v.

Yurko, 446 So. 2d 1162, 1166 (Fla. Dist. Ct. App.

1984). Stated another way, "the instigator must have

had '[a] reasonable ground of suspicion, supported by

circumstances sufficiently strong in themselves to

warrant a cautious man in the belief that the person

accused is guilty of the offense with which he is

charged.'" Mee, 608 F.3d at 1211 (alteration in

original) (quoting Goldstein v. Sabella, 88 So. 2d 910,

911 (Fla. 1956)). A lack of probable cause can be

shown "[w]here it would appear to a 'cautious man'

that further investigation is justified before

instituting a proceeding," and such investigation is

not undertaken. Harris v. Lewis State Bank, 482 So.

2d 1378, 1382 (Fla. Dist. Ct. App. 1986).

In the context of a civil suit, probable cause is

"measured by a lesser standard than in a criminal

suit." Wright, 446 So. 2d at 1166. And the Florida

Supreme Court has explained that "[w]hat facts and

circumstances amount to probable cause is a pure

question of law," while the existence of those facts or

circumstances "in any particular case is a pure

question of fact." City of Pensacola v. Owens, 369 So.2d

328, 330 (Fla. 1979) (internal quotation marks

omitted).

Here, the district court properly granted summary

judgment to Wantman on DeMartini's malicious

prosecution claim because Wantman, like the Town,

had probable cause to file the RICO suit against her.

It is undisputed that: (1) Gerald Richman represented

the Town and Wantman in the lawsuit; (2) Richman

investigated CAFI's fraudulent scheme at length; (3)

67a

Richman called Wantman about the lawsuit; and (4)

Wantman agreed to join the Town in filing the lawsuit

based on discussions with Richman. Indeed, based on

a year-long investigation, including reviewing

Chandler's statements, Richman had obtained

substantial information that supported a reasonable

belief that CAFI, O'Boyle, the O'Boyle Law Firm, and

other

individuals—including

DeMartini—had

committed fraud through their participation in an

extortionate scheme involving fraudulent public

records requests, false settlement demands, and

subsequent multiple lawsuits designed to obtain

attorney's fees as opposed to the requested records.22

We recognize that DeMartini stresses that

Wantman's President and Federal Rule of Civil

Procedure 30(b)(6) representative, David Wantman,

testified at his deposition that (1) he had "no idea" who

DeMartini was, and (2) aside from discussing the

matter with attorney Richman, Wantman did not

independently investigate DeMartini's role in CAFI's

fraudulent scheme. But the fact remains that

DeMartini does not dispute that Richman

investigated CAFI's scheme, advised the Town and

later Wantman about that scheme, and Wantman

only agreed to join the lawsuit after discussions with

Richman.

22 As noted earlier, DeMartini also brought a claim for malicious

prosecution against Gerald Richman. The district court granted

summary judgment to Richman on that claim because DeMartini

failed to cite evidence from which a reasonable jury could infer

that Richman lacked probable cause for filing the RICO civil

lawsuit. On appeal, DeMartini does not challenge that ruling.

68a

Arising from their attorney-client relationship,

Wantman and Richman had a principal and agent

relationship. See Durrett v. Jenkins Brickyard, Inc.,

678 F.2d 911, 916 (11th Cir. 1982) (explaining that an

attorney is his client's agent and representative).

Information obtained by an agent is imputed to the

agent's principal. See First Ala. Bank of Montgomery,

N.A., First State Ins. Co., 899 F.2d 1045, 1074, 1079

(11th Cir. 1990) (stating that generally the agent's

knowledge is imputed to the principal and is treated

as the principal's knowledge). Everything that

Richman knew about DeMartini's role in the scheme

was imputed to Wantman. Accordingly, Wantman had

probable cause to file the RICO suit against

DeMartini.23

VII. CONCLUSION

For the foregoing reasons, we affirm the district

court's grant of summary judgment to the Town on

DeMartini's § 1983 First Amendment retaliation

claim and to Wantman on her Florida malicious

prosecution claim.

AFFIRMED.

Concur by: ROSENBAUM

23 The district court properly denied DeMartini's cross-motion for

summary judgment against Wantman. As described above, there

is no genuine issue of material fact that Wantman had probable

cause to file the RICO action.

69a

CONCUR

ROSENBAUM, Circuit Judge, concurring:

I concur in much of the panel's well-reasoned

opinion. I write separately to address the Majority

Opinion only to the extent that it might be understood

to suggest that probable cause supporting the filing of

a civil lawsuit predicated on prior civil litigation may

be all that is ever required to defeat a § 1983 First

Amendment retaliation claim. See Maj. Op. at 60 ("To

date, the Supreme Court has not identified any

exceptions to the no-probable-cause requirement in §

1983 First Amendment retaliation claims predicated

on criminal prosecutions. Arguably, retaliation claims

predicated on prior civil lawsuits would not be subject

to exceptions either."). With any such suggestion, I

firmly disagree.

Presumably, the Majority Opinion bases any

suggestion that a finding of probable cause may be all

that is ever required in a case such as this one on

Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164

L. Ed. 2d 441 (2006), since that is the sole alleged

retaliatory criminal-prosecution case it discusses. But

Hartman does not stand for the proposition that a

showing of probable cause justifying a criminal

prosecution necessarily forecloses a First Amendment

retaliation claim in all cases. To the contrary,

Hartman expressly explains that the showing of

probable cause supporting a criminal prosecution "is

not necessarily dispositive." Id. at 265. That is so

because "showing . . . [the] presence [of probable

cause] does not guarantee that [retaliation] was not

the but-for fact in a prosecutor's decision." Id. Indeed,

70a

Hartman notes that "[a] prosecutor's disclosure of

retaliatory thinking on his part . . . would be of great

significance . . . . So would evidence that a prosecutor

was nothing but a rubber stamp for his investigative

staff or the police." Id. at 264. Nevertheless, Hartman

reasons, because such incidents "are likely to be rare,"

it makes sense for the rule to provide that probable

cause supporting a criminal prosecution generally

forecloses the viability of a First Amendment

retaliation suit. See id.

But criminal prosecutions can result in the loss of

liberty, can affect reputation, and can be costly to the

person prosecuted. As a result, they can be an effective

way to punish a speaker with whom the government

disagrees and to chill and slow down others who would

consider voicing their discontent with the

government. So Hartman explicitly leaves the door

open for First Amendment retaliation claims based on

probable-cause supported criminal actions that would

not have been brought but for an intent on the part of

the government to retaliate against the defendant for

engaging in protected First Amendment activity.

The same is true of civil lawsuits. Probable cause

supporting the filing of a civil lawsuit predicated on

prior civil litigation may, as a general rule, be all that

is required to defeat a § 1983 First Amendment

retaliation claim. But civil litigation is costly and

stressful. It can also result in delays to the matters

being litigated. So like a criminal prosecution,

litigation can also be a highly effective way to punish

and chill protected First Amendment activity.

71a

To ensure that the government is never permitted

to weaponize litigation to punish and chill protected

speech, in every § 1983 First Amendment retaliation

case involving the filing of a lawsuit in response to

prior civil litigation, even though supported by

probable cause, we must always at least evaluate the

surrounding circumstances, keeping in mind the

considerations the Supreme Court has identified in

Hartman and in retaliatory-arrest cases such as

Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 201

L. Ed. 2d 342 (2018), and Nieves v. Bartlett, 139 S. Ct.

1715, 204 L. Ed. 2d 1 (2019). Of course, the Majority

Opinion did just that here, and it demonstrated why,

in this case, those considerations do not warrant an

exception to the general rule that probable cause

supporting the filing of a lawsuit predicated on prior

civil litigation defeats a § 1983 First Amendment

retaliation claim. I therefore concur.

72a

APPENDIX B

United States District Court

FOR THE SOUTHERN DISTRICT OF FLORIDA

Decided August 9, 2017

Entered on Docket August 9, 2017

Case No. 16-81371-CIV MIDDLEBROOKS

DENISE DeMARTINI,

Plaintiff

TOWN OF GULF STREAM, WANTMAN GROUP,

INC., RICHMAN GREER, P.A., GERALD F.

RICHMAN, and ROBERT A. SWEETAPPLE,

Defendants.

__________

ORDER AND OPINION GRANTING

DEFENDANTS’ MOTIONS FOR SUMMARY

JUDGMENT

THIS CAUSE comes before the Court upon the

Motions for Summary Judgment ("Motions") filed by

Defendants Town of Gulf Stream ("the Town"), Robert

Sweetapple ("Sweetapple"), Richman Greer, P.A.

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("Richman Greer"), Gerald F. Richman ("Richman"),

and Wantman Group, Inc. ("Wantman") (together,

"Defendants"). (DE 136, 140, 142, 167). Plaintiff

Denise DeMartini ("DeMartini") filed responses in

opposition (DE 145, 172, 175, 176), to which

Defendants replied (DE 173, 179, 185, 186). In

addition, DeMartini filed a cross-motion ("DeMartini

Cross-Motion") for partial summary judgment solely

against Wantman. (DE 132). For the reasons stated

below, Defendants' Motions are granted and the

DeMartini Cross-Motion is denied.

I. BACKGROUND

As I observed in my order denying Defendants'

motions to dismiss, the instant litigation is one battle

in a larger war between the Town and Martin E.

O'Boyle ("O'Boyle"), his organization, Citizens

Awareness Foundation, Inc. ("CAFI"), and its

associates. O'Boyle is a resident of the Town and "selfdescribed supporter of Florida's public records laws."

(DSOF at ¶ 6).1 In addition to his public records

activities, O'Boyle controls and serves as president of

two real estate entities, Commerce Group, Inc.

1 Pursuant to Local Rule 56.1(a), the Town filed a Statement of

Undisputed Material Facts on the same day that it filed the

instant Motion. (DE 137). DeMartini filed a response to the

Town's statement in an exhibit attached to its Response brief

(DE 145-1). Except where DeMartini introduces additional facts

or disputes those raised by the Town, the Court refers solely to

the Town's Statement, which is styled "DSOF" (Defendant's

Statement of Facts). DeMartini's response, where referenced, is

labeled "PSOF" (Plaintiff's Statement of Facts). The Town's codefendants also filed Statements of Fact. (DE 140 & 141). I refer

to those by docket number.

74a

("Commerce Group") and CRO Realty, Inc. ("CRO

Realty"). (Id. at ¶¶ 7, 10). Since 2013, O'Boyle has

submitted numerous public records requests to the

Town. (Id. at ¶ 6). Based on the Town's allegedly

inadequate responses to these requests, O'Boyle "filed

approximately 29 lawsuits against" the Town for

violating the public records laws and his

constitutional rights. (Id.).

The O'Boyle Law Firm and CAFI. In January

2014, Jonathan O'Boyle ("Jonathan"), an attorney

then admitted to practice in Pennsylvania and

O'Boyle's son (id. at ¶¶ 22-23), filed an application

with the Florida Division of Corporations to register

the O'Boyle Law Firm, P.C., Inc. (the "O'Boyle Law

Firm" or the "Firm") as a foreign corporation licensed

to do business in Florida (id. at ¶ 21). Although the

Parties dispute the extent to which the Firm was

conceived as a joint venture between O'Boyle and

Jonathan (DSOF at ¶ 25; PSOF at ¶ 25), both sides

agree that O'Boyle funded the Firm's operations

(DSOF at ¶ 26) and that the Firm's principal office

was located in the same building that houses the

Commerce Group and CRO Realty (id. at ¶ 26). The

same month that Jonathan registered the Firm, CAFI

was incorporated. (Id. at ¶ 31). As with the O'Boyle

Law Firm, CAFI shared the same address as O'Boyle's

real estate ventures (id. at ¶¶ 32, 38) and was funded

by O'Boyle personally (id. at ¶ 37). CAFI's blog

describes the organization as:

. . . a non-partisan, not-for-profit organization

dedicated to the proposition that members of the

public have a right to know what their government

75a

is doing in their name and at their expense. To that

end[,] [CAFI] seeks to empower citizens to exercise

their "right to know" by providing free educational

materials and programs, and when appropriate,

taking legal action to enforce the public's right of

access to public records and public meetings.

(DE 145 at 10 & Ex. 7). Although the Parties heavily

dispute the purpose of and relationship between CAFI

and the O'Boyle Law Firm, the uncontested facts and

briefing make clear that a large part of CAFI's

activities revolved around (a) making public records

requests to numerous entities, pursuant to Florida's

Public Records Act, Fla. Stat. § 119.07 and (b) filing

lawsuits under the Act against those entities that

were deemed to have responded insufficiently or

untimely. (See, e.g., DE 14510, "DeMartini Decl.," at

¶¶

5-6

(CAFI's

"purpose/function"

included

"testing/enforcement of agency compliance with

Florida's public records laws" by "fil[ing] lawsuits

against municipalities and other state agencies")).

CAFI engaged the Firm to litigate at least some of

these suits. See, e.g., Citizens Awareness Found., Inc.

v. Florida City, 191 So. 3d 471 (Fla. 3d DCA 2016)

(Table) (CAFI, as appellant, represented by the

O'Boyle Law Firm); Citizens Awareness Found., Inc.

v. Wantman Grp., Inc., 195 So. 3d 396 (Fla. 4th DCA

2016) (CAFI, as appellant, represented by the O'Boyle

Law Firm and co-counsel).

DeMartini's Role at O'Boyle's Organizations.

DeMartini worked for O'Boyle's organizations in

several capacities since 1984. Many aspects of her

work are not in dispute. O'Boyle has referred to

76a

DeMartini as his "left hand" (DSOF at ¶ 15), a

characterization DeMartini considers accurate in at

least some conte

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