Amicus Curiae Brief — Sylvia Gonzalez, Petitioner v. Edward Trevino, II, et al.

Supreme Court briefDec 18, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-1025

IN THE

SYLVIA GONZALEZ,

Petitioner,

EDWARD TREVINO, II, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF INSTITUTE FOR FREE SPEECH

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

Alan Gura

INSTITUTE FOR FREE

SPEECH

1150 Connecticut Ave., NW

Suite 801

Washington, DC 20036

Easha Anand

Counsel of Record

Pamela S. Karlan

Jeffrey L. Fisher

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-3345

eanand@stanford.edu

TABLE OF CONTENTS

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

INTERESTS OF AMICUS CURIAE........................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT

...................................................................................... 1

ARGUMENT ................................................................ 3

Mt. Healthy provides the default rule for

analyzing First Amendment retaliation

claims .................................................................... 3

II. The Mt. Healthy framework should apply to

retaliatory arrest cases except for where

First Amendment protected activity was a

“wholly legitimate consideration” for the

arrest ..................................................................... 8

III. Amicus’s approach better calibrates First

Amendment analysis across a wide range of

cases than the Fifth Circuit’s rule. .................... 14

IV. The Fifth Circuit’s rule undermines

traditional First Amendment values. ................ 19

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

TABLE OF AUTHORITIES

Page(s)

Cases

Abrams v. Walker,

307 F.3d 650 (7th Cir. 2002) ..................................5

Acosta v. City of Costa Mesa,

718 F.3d 800 (9th Cir. 2013) ..................................6

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................5

Ashley v. Boayue,

2023 WL 2910533 (6th Cir. 2023)..........................4

Ballentine v. Tucker,

28 F.4th 54 (9th Cir. 2022) ....................................7

Baribeau v. City of Minneapolis,

596 F.3d 465 (8th Cir. 2010) ..............................5, 6

Beck v. City of Upland,

527 F.3d 853 (9th Cir. 2008) ..................................6

Bello-Reyes v. Gaynor,

985 F.3d 696 (9th Cir. 2021) ..................................4

Bodwell v. Osgood,

20 Mass. 379 (1825) ..............................................23

Boykin v. City of New York,

2022 WL 4585299 (S.D.N.Y. Sept. 29,

2022), aff’d, 2023 WL 7383147 (2d Cir.

Nov. 8, 2023) .........................................................16

Carroll v. Princess Anne,

393 U. S. 175 (1968) .............................................17

City of Houston, Tex. v. Hill,

482 U.S. 451 (1987) ..............................................11

iii

Crawford-El v. Britton,

523 U.S. 574 (1998) ..........................................3, 20

D.C. v. Wesby,

138 S. Ct. 577 (2018) ............................................23

Devenpeck v. Alford,

543 U.S. 146 (2004) ..............................................20

Ford v. City of Yakima,

706 F.3d 1188 (9th Cir. 2013) ................................6

Frey v. Town of Jackson, Wyo.,

41 F.4th 1223 (10th Cir. 2022) ..............................6

Galarnyk v. Fraser,

687 F.3d 1070 (8th Cir. 2012) ..............................15

Gray v. Pentland,

2 Serg. & Rawle 23 (Pa. 1815) .............................23

Gullick v. Ott,

517 F. Supp. 2d 1063 (W.D. Wis. 2007) .................7

Hartman v. Moore,

547 U.S. 250 (2006) ..........................................3, 10

Heffernan v. City of Patterson, N.J.,

578 U.S. 266 (2016) ..........................................3, 20

Hill v. City of Fountain Valley,

70 F.4th 507 (9th Cir. 2023) ..................................5

Howard v. Thompson,

21 Wend. 319 (N.Y. Sup. Ct. of Judicature

1839)......................................................................23

Leonard v. Robinson,

477 F.3d 347 (6th Cir. 2007) ................................11

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) ....................4, 10, 11, 12, 24

Lund v. City of Rockford,

956 F.3d 938 (7th Cir. 2020) ................................17

Mitchell v. Kirchmeier,

28 F.4th 888 (8th Cir. 2022) ..................................5

Molina v. City of St. Louis, Mo.,

59 F.4th 334 (8th Cir. 2023) ..................................6

Moss v. U.S. Secret Serv.,

572 F.3d 962 (9th Cir. 2009) ..................................5

Mt. Healthy City School District Board of

Education v. Doyle,

429 U.S. 274 (1977)

......................................... i, 1–10, 13, 15, 16, 18, 21

Niveves v. Bartlett,

139 S.Ct. 1715 (2019)

.................................... i, 1, 2, 7, 8, 9, 10, 15, 20, 23

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ..............................................23

Novak v. City of Parma,

932 F.3d 421 (6th Cir. 2019) ................................19

Reichle v. Howards,

566 U.S. 658 (2011) ..........................................7, 10

Roberts v. Winder,

16 F.4th 1367 (10th Cir. 2021) ..............................4

Rosenblatt v. Baer,

383 U.S. 75 (1965) ................................................22

Seven Bishops Case,

12 How. St. Tr. 183 (K.B. 1688) ...........................21

Sexton v. City of Colorado Springs, Colo.,

2022 WL 168714 (D. Colo. Jan. 19, 2022) ...........19

Sloman v. Tadlock,

21 F.3d 1462 (9th Cir. 1994) ..................................7

Smith v. Cnty. of Suffolk,

776 F.3d 114 (2d Cir. 2015)....................................4

Thames v. City of Westland,

796 Fed. Appx. 251 (6th Cir. 2019)........................5

Thorn v. Blanchard,

5 Johns. 508 (N.Y. Ct. for Corr. of Errors

1809)......................................................................23

Utah v. Strieff,

579 U.S. 232 (2016) ..............................................23

Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp.,

429 U.S. 252 (1977) ................................................4

Williams v. Radford,

64 F.4th 1185 (11th Cir. 2023) ..............................4

Constitutional Provisions

U.S. Const., amend. I

.................. i, 1, 2, 3, 4, 5, 7, 8, 11, 14–20, 22, 23, 24

U.S. Const., amend. IV ...........................................2, 20

English Bill of Rights, Will. & Mar. Sess. 2,

c. 2 (1689) ...............................................................21

Statutes

Tex. Pen. Code § 37.10(a)(3) .......................................12

Rules

Sup. Ct. R. 37.6 .............................................................1

Other Authorities

A Native of Virginia, Observations upon the

Proposed Plan of Federal Government (Apr.

2, 1788), reprinted in The Documentary

History of the Ratification of the

Constitution Digital Edition (John P.

Kaminski et al., eds. 2009)....................................22

Cato’s Letters, or Essays on Liberty, Civil and

Religious, and Other Important Subjects

(4th ed. 1737) .........................................................22

Cooley, Thomas M., A Treatise on the

Constitutional Limitations Which Rest upon

the Legislative Power of the States of the

American Union (2d ed. 1871) ........................21, 23

Gordon, Thomas & John Trenchard, No. 15: Of

Freedom of Speech: That the Same is

Inseparable from Publick Liberty (Feb. 4,

1720) ................................................................. 21-22

Kagan, Elena, Private Speech, Public Purpose:

The Role of Governmental Motive in First

Amendment Doctrine, 63 U. Chi. L. Rev. 413

(1996) .......................................................................3

Perry, Richard L. & John C. Cooper, eds.,

Sources of Our Liberties: Documentary

Origins of Individual Liberties in the United

States Constititution and Bill of Rights

(1959) ...............................................................21, 22

Rossiter, Clinton, Seedtime of the Republic: The

Origin of the American Tradition of Political

Liberty (1953) ........................................................22

INTERESTS OF AMICUS CURIAE1

The Institute for Free Speech is a nonpartisan,

nonprofit organization dedicated to the protection of

the First Amendment rights of speech, assembly,

press, and petition. In addition to scholarly and

educational work, the Institute represents individuals

and civil society organizations in litigation securing

their First Amendment liberties. Helping ensure that

people are free to express their political views without

fear of being arrested for doing so advances the

Institute’s core mission.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This amicus brief addresses the second Question

Presented by petitioners: Which First Amendment

retaliatory arrest cases are governed by Mt. Healthy

City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), this

Court’s default rule in First Amendment retaliation

cases, and which are governed by Nieves v. Bartlett,

139 S. Ct. 1715, 1727 (2019), which imposes a higher

standard on plaintiffs in some retaliatory arrest cases.

Petitioner reads Nieves to apply where the

defendant is an arresting officer who made an “on the

spot” arrest. Petr. Br. 30-34. That reading has much to

recommend it. Amicus proposes an alternative

approach: Nieves applies where the protected activity

is a “wholly legitimate consideration” in the arrest

decision—that is, when the protected activity

Pursuant to Rule 37.6, amicus affirms that no counsel for

a party authored this brief in whole or in part and that no person

other than amicus, its members, or counsel has made a monetary

contribution intended to fund the preparation or submission of

this brief.

“provides evidence of a crime or suggests a potential

threat.” Nieves, 139 S. Ct. at 1724; Reichle v.

Howards, 66 U.S. 658, 668 (2011).

Such cases present unique “causal complexities”

that justify a heightened burden on plaintiffs. Nieves,

139 S. Ct. at 1724. As Judge Thapar put the point, in

such cases, the standard Mt. Healthy inquiry—

designed to suss out if “the same decision would have

been reached absent plaintiff’s protected speech”—

“gets us nowhere”: Both the plaintiff and the officer

agree that the protected speech was the reason for the

arrest. See Novak v. Parma, 932 F.3d 421, 431 (6th

Cir. 2019). The plaintiff claims the officer made the

arrest out of animus to the protected activity; the

officer claims he was simply enforcing the law.

Nieves’s additional requirements help tease out which

party is correct.

Moreover, in many cases where protected activity

is a “wholly legitimate consideration,” the bigger First

Amendment problem may lie with the statute itself.

Where the statute itself criminalizes vulgarity,

parody, or criticism of the police, for instance, it’s

difficult to say that the officer’s motive is retaliatory

rather than a desire to enforce a “duly enacted law.”

See Leonard v. Robinson, 477 F.3d 347, 367 (6th Cir.

2007) (Sutton, C.J., concurring in part).

Limiting Nieves to cases where protected speech

is a “wholly legitimate consideration” in the arrest

decision better accords with First Amendment values

than petitioner’s approach, which would apply Nieves

to all arrests that take place in close proximity to the

crime. For instance, imagine an officer with a vendetta

against his critic who waits for her to slip up and

violate some traffic law, then makes an “on the spot”

arrest. Under petitioner’s approach, that officer still

gets the benefit of Nieves. Under amicus’s approach,

he would not—there’s no legitimate reason for her

protected activity to influence an arrest for a traffic

violation. Moreover, amicus’s approach properly

cabins Nieves to cases truly presenting the “causal

complexities” animating that decision. By contrast,

the Fifth Circuit’s decision below, which applies

Nieves virtually across the board in retaliatory arrest

cases, undermines the careful balance Nieves struck.

Whether by adopting amicus’s approach or

petitioner’s, this Court should reverse the decision

below. A 72-year-old city councilwoman was jailed for

organizing a petition critical of the government. Any

approach that entirely forecloses her retaliatory arrest

claim cannot be correct.

ARGUMENT

Mt. Healthy provides the default rule for

analyzing First Amendment retaliation claims.

The rule this Court announced in Mt. Healthy,

which is the default in First Amendment retaliation

cases, provides a workable framework in the majority

of retaliatory arrest claims.

1. In First Amendment jurisprudence, motives

matter. Indeed, “First Amendment law is best

understood and most readily explained as a kind of

motive-hunting.” Elena Kagan, Private Speech, Public

Purpose: The Role of Governmental Motive in First

Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414

(1996).

Consistent with this principle, this Court has long

recognized that “the First Amendment bars retaliation

for protected speech.” Crawford-El v. Britton, 523 U.S.

574, 592 (1998). “Retaliation” describes an adverse

action taken as a result of an improper motive.

Heffernan v. City of Patterson, 578 U.S. 266, 273

(2016).

A plaintiff asserting a First Amendment

retaliation claim cannot recover merely because a

government official acts with an improper motive. It

may be “dishonorable to act with an unconstitutional

motive, but action colored by some degree of bad

motive does not amount to a constitutional tort if that

action would have been taken anyway.” Hartman v.

Moore, 547 U.S. 250, 260 (2006). In other words, the

motive must be the but-for cause of the retaliatory

action.

2. This Court operationalized that inquiry decades

ago through its foundational opinion in Mt. Healthy.

There, the Court established a two-step framework

that serves as a “test of causation.” Id. at 286. A

plaintiff alleging retaliation must first show that the

First Amendment protected activity was a “motivating

factor” in the adverse action. Id. at 287 (quoting Vill.

of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 270 & n.21 (1977)). “[C]ircumstantial” or

“direct evidence” can both be used to satisfy the

plaintiff’s burden. Arlington Heights, 429 U.S. at 266.

If the plaintiff carries that burden, the defendant

then has the opportunity to show he would have taken

the same adverse action “even in the absence of the

protected conduct.” Mt. Healthy, 429 U.S. at 287.

3. The Mt. Healthy framework has governed a

wide range of First Amendment retaliation cases,

including where government actors invoke safety or

security concerns. See, e.g., Ashley v. Boayue, 2023

WL 2910533, at *6 (6th Cir. 2023) (“shakedown” of

incarcerated plaintiff’s cell, leading to confiscation of

prescribed medical supplies); Williams v. Radford, 64

F.4th 1185, 1193 (11th Cir. 2023) (segregated

confinement and search of incarcerated plaintiff’s

cell); Bello-Reyes v. Gaynor, 985 F.3d 696, 698 (9th

Cir. 2021) (immigration detention); Smith v. Cnty. of

Suffolk, 776 F.3d 114, 122-25 (2d Cir. 2015) (police

department disciplinary actions against an officer);

Roberts v. Winder, 16 F.4th 1367, 1381-84 (10th Cir.

2021) (police officer’s reassignment).

4. Mt. Healthy has also proven to be a reliable

framework in retaliatory arrest claims. See, e.g.,

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

1954-55 (2018). In particular, Mt. Healthy provides

courts with tools to weed out meritless retaliatory

arrest claims that could undermine law enforcement

interests.

To proceed under Mt. Healthy, a plaintiff can’t

just allege protected activity and an arrest; she must

show a causal connection between the two. See, e.g.,

Hill v. City of Fountain Valley, 70 F.4th 507, 519 (9th

Cir. 2023) (asking officers “what was really going on”

before being arrested insufficient to reach a jury, even

where officers lacked probable cause for arrest).

Indeed, a case may be dismissed even at the complaint

stage where there is an “‘obvious alternative

explanation’” to retaliation—for example, that

“officers were simply trying to maintain law and

order.” Mitchell v. Kirchmeier, 28 F.4th 888, 896-97

(8th Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 682 (2009)); cf. Moss v. U.S. Secret Serv., 572 F.3d

962, 970 (9th Cir. 2009) (a “bald allegation of

impermissible motive” does not plausibly state a claim

for relief).

Plaintiffs have a particularly difficult time

showing retaliation where arrests are made for serious

crimes. In such cases, courts reasonably infer a

nonretaliatory basis for the arrest. See, e.g., Abrams

v. Walker, 307 F.3d 650, 652, 657 (7th Cir. 2002)

(disobeying the officer, attempting to flee, and

grabbing a knife); Thames v. City of Westland, 796

Fed. Appx. 251, 265 (6th Cir. 2019) (making bomb

threat).

Even where the crime of arrest is less serious, an

officer isn’t liable simply because he made a bad

judgment call. Instead, an officer will be held liable

only if he was motivated by animus against the

protected activity. For instance, in one case, officers

arrested protesters dressed as zombies for disorderly

conduct. Baribeau v. City of Minneapolis, 596 F.3d

465, 470-71 (8th Cir. 2010). The court sided with

officers on the First Amendment retaliation claim. Id.

at 481. Even though officers lacked probable cause for

the arrest, one officer said he “observed a young girl

become frightened,” and that was enough for the court

to conclude that the protesters’ protected activity was

not a “motivating factor” in the arrest. Id. at 480-81.

The qualified immunity doctrine layers on still

more protection. Precedent may not clearly establish a

plaintiff’s activity as protected. See, e.g., Molina v.

City of St. Louis, Mo., 59 F.4th 334, 338-40 (8th Cir.

2023) (observing and recording police). It protects an

officer where the adverse action is not clearly

established as capable of chilling protected activity.

See, e.g., Frey v. Town of Jackson, Wyo., 41 F.4th

1223, 1235 (10th Cir. 2022) (wristlock after arrest).

And the officer may be enforcing a law yet be entitled

to qualified immunity because he reasonably relies on

the law’s legality. See, e.g., Acosta v. City of Costa

Mesa, 718 F.3d 800, 823-26 (9th Cir. 2013) (disorderly

behavior statute).

5. While assessing causation under Mt. Healthy,

courts can consider a wide variety of evidence.

For instance, courts can consider what an officer

said or did while effectuating an arrest. See, e.g., Ford

v. City of Yakima, 706 F.3d 1188, 1191 (9th Cir. 2013)

(officer’s statement to plaintiff, recorded on video,

that, “You talked yourself—your mouth and your

attitude talked you into jail.” (emphases removed)).

Courts can also weigh previous interactions between

the plaintiff and the police officer. See, e.g., Beck v.

City of Upland, 527 F.3d 853, 868-69 (9th Cir. 2008)

(previous “heated confrontation” between plaintiff and

police in which officer told plaintiff, “[W]e should have

taken care of you a long time ago.”). And courts can

consider a police officer’s longstanding animus against

a group with which plaintiff is associated. See, e.g.,

Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir.

1994) (officer was “almost always” present at

association’s picketing events and pulled over a fellow

association member to criticize a bumper sticker

supporting association’s political activities).

Mt. Healthy also allows courts to take into

account the presence or absence of probable cause and

the treatment of comparable individuals who have not

engaged in protected activity. Under Mt. Healthy, “if

an officer had probable cause for making an arrest,

that tends to undermine an allegation that the arrest

was fabricated.” See Gullick v. Ott, 517 F. Supp. 2d

1063, 1072, 1074-76 (W.D. Wis. 2007). And courts

applying Mt. Healthy routinely consider how officers

responded to the same or similar crimes. See, e.g.,

Ballentine v. Tucker, 28 F.4th 54, 62-63 (9th Cir. 2022)

(no evidence that anyone had ever been arrested for

chalking on the sidewalk supported claim that arrest

was in retaliation for chalking messages critical of

police).

II. The Mt. Healthy framework should apply to

retaliatory arrest cases except for where First

Amendment protected activity was a “wholly

legitimate consideration” for the arrest.

1. Though Mt. Healthy is the default rule in First

Amendment retaliation cases, this Court departed

from that default in Nieves v. Bartlett, 139 S. Ct. 1715

(2019), for certain retaliatory arrest claims: those

where the plaintiff’s First Amendment protected

activity was a “‘wholly legitimate consideration’ for

officers when deciding whether to make an arrest.” Id.

at 1724 (quoting Reichle v. Howards, 566 U.S. 658, 668

(2011)).

Protected activity is a “wholly legitimate

consideration” in an arrest decision when it “provides

evidence of a crime or suggests a potential threat.”

Reichle, 566 U.S. at 668. For example, a suspect’s

“untruthful and evasive answers” might lead an officer

to believe the suspect had previously committed an

offense. Nieves, 139 S. Ct. at 1724 (citation omitted).

The suspect’s protected activity may be part of an

offense currently being committed: In Nieves itself,

the suspect’s “content and tone of speech” was part of

the way he committed the offense of disorderly

conduct. Id. Or a suspect’s statements might make

clear he “presents a continuing threat,” such that an

officer worries an offense is about to be committed. Id.

(citation omitted).

2. Cases where protected activity is a “wholly

legitimate consideration” present causal complexities

absent from the mine run of retaliatory arrest cases.

In most cases, the plaintiff and the officer have

different stories about the reason for the arrest: The

plaintiff says the officer made the arrest because she

criticized the police, the officer said he made the arrest

for a reason unrelated to the protected activity (for

instance, the plaintiff was driving erratically). Mt.

Healthy helps us untangle who is telling the truth.

But in cases where speech is a “wholly legitimate

consideration,” both officer and plaintiff agree that the

protected activity is the reason for the arrest. Both

might agree that an arrest for, say, obstructing a

police investigation was made because the plaintiff

was encouraging others not to speak with the police.

See Nieves, 139 S. Ct. at 1724. The plaintiff claims the

arrest was retaliatory: The officer is hostile to the

plaintiff’s message critical of the police. The officer

claims the arrest was made because the plaintiff’s

speech was interfering with police activity: The officer

was simply enforced the obstruction law. The “causal

complexit[ies],” Nieves, 139 S. Ct. at 1724, of such

cases—the fact that both sides agree that the

protected activity was the but-for cause of the arrest—

mean that the Mt. Healthy framework is insufficient

to identify true retaliatory arrest cases.

3. To address that “causal complexity,” this Court

has imposed additional requirements on plaintiffs in

cases where protected activity is a “wholly legitimate

consideration” in the arrest decision. In such cases, in

addition to showing that the protected conduct was a

“motivating factor” in the arrest (Mt. Healthy’s first

step), a plaintiff must also either (1) prove that the

officer lacked probable cause to arrest or (2) supply

comparator evidence (for instance, that in other cases,

officers have exercised their discretion not to arrest for

that offense).2 See Nieves, 139 S. Ct. at 1725, 1727.

Nieves thus imposes a higher bar for plaintiffs in

certain retaliatory arrest cases. In cases where a

plaintiff can meet her burden under Mt. Healthy, but

cannot make one of Nieves’s additional showings,

Nieves may foreclose a retaliatory arrest claim

altogether. For instance, when the plaintiff’s strongest

evidence is an officer’s own statements, see supra, 7-8,

the Nieves requirements may bar a plaintiff’s claim.

4. Understanding Nieves to cover cases where

speech is a “wholly legitimate consideration” in the

arrest decision harmonizes this Court’s case law.

To start, imposing a higher standard than Mt.

Healthy in cases featuring heightened “causal

complexities” accords with Nieves’s predecessor cases.

See, e.g., Reichle, 566 U.S. at 668 (describing the

“tenuous causal connection between the defendant’s

alleged animus and the plaintiff’s injury”); Hartman,

547 U.S. at 259 (“[T]he need to prove a chain of

causation from animus to injury . . . provides the

strongest justification for the no-probable-cause

requirement . . . .”).

Understanding Nieves to be confined to cases

where speech is a “wholly legitimate consideration” in

the arrest decision also makes sense of this Court’s

decisions in Nieves and Lozman.

What exactly qualifies under (2) is the subject of the first

Question Presented by the petitioner. This amicus brief does not

address that question.

In Nieves, the protected activities were Bartlett’s

refusal to speak with Nieves and his yelling at a fellow

partygoer not to speak with the police. See 139 S. Ct.

at 1721. But those same activities were “wholly

legitimate considerations” in the arrest decision—

Bartlett was guilty of committing disorderly conduct,

the crime of arrest, in part because he had yelled at

other partygoers not to speak with police. Nieves, 139

S. Ct. at 1721. This Court thus required Bartlett not

only to prove that his protected activities were

“motivating factor[s]” in the arrest but also to make

one of the two additional showings. Id. at 1723, 1727

In Lozman v. City of Riviera Beach, by contrast,

the animus-generating protected activity was not a

“wholly legitimate consideration” in the arrest

decision. Lozman had previously criticized the city and

was later arrested for violating rules of procedure at a

public hearing. See Lozman, 138 S. Ct. at 1949-51. The

Court held the arrest was “retaliation for prior,

protected speech.” Id. at 1954. The protected activities

(Lozman’s prior criticisms of the city) “b[ore] little

relation to the criminal offense for which the arrest

[wa]s made” (violating procedural rules at the

hearing). Id. Because Lozman’s previous criticisms of

the city were not “wholly legitimate consideration[s]”

in the arrest decision, he did not have to make either

of the Nieves showings.

5. Moreover, when a criminal statute makes First

Amendment

activity

“wholly

legitimate

consideration” for an arrest, a plaintiff’s quarrel may

be with the statute itself. In Leonard v. Robinson, for

example, an officer faced a retaliatory arrest claim for

enforcing vulgarity statutes against a plaintiff who

uttered the phrase, “God damn.” 477 F.3d 347, 351

(6th Cir. 2007). Writing separately, Judge Sutton

opined that the real First Amendment problem was

with the vulgarity statute itself. Id. at 363 (Sutton, J.,

concurring in part and dissenting in part).

Amicus’s approach accords with Judge Sutton’s

intuition: It may be harder to prove retaliation when

an officer considers protected activity in the course of

enforcing “duly enacted laws.” See id. at 367. But

precisely where it is most difficult to prove

retaliation—when the activity criminalized by the

statute overlaps with the protected activity that

purportedly generated animus—the plaintiff will have

another recourse: challenging the law itself as

violative of the First Amendment. Id. at 363. Indeed,

if the plaintiff’s challenge to the statute is successful,

she can receive money damages and attorneys’ fees.

See City of Houston, Tex. v. Hill, 482 U.S. 451 (1987).

6. Under a correct reading of Nieves, this Court

should vacate the Fifth Circuit’s judgment in this case.

Here, Ms. Gonzalez’s protected, animus-generating

activity consisted of spearheading a petition critical of

the city manager. Pet. App. 21a; 34a (Oldham, J.,

dissenting). At a city council meeting, Ms. Gonzalez

inadvertently placed the petition in her binder (then

returned it before leaving). Two months later, she was

arrested for “destroy[ing], conceal[ing], remov[ing], or

otherwise impair[ing] the . . . availability of a

governmental record”—despite never having left the

council meeting with the petition. Id. 22a (majority)

(quoting Tex. Pen. Code § 37.10(a)(3)). Ms. Gonzalez’s

protected activity was not a “wholly legitimate

consideration” in deciding to arrest her for tampering

with a governmental record. Id. 55a (Oldham, J.,

dissenting); cf. Lozman, 138 S. Ct. at 1954. The Fifth

Circuit thus erred in requiring Ms. Gonzalez to prove

one of Nieves’s additional requirements.

6. Admittedly, that’s not the only way to read

Nieves. Petitioner in this case reads Nieves to apply

where (1) the arrest was “on the spot,” and (2) the

named defendant is an arresting officer. Petr. Br. 3034. That proposal has much to recommend it, and Ms.

Gonzalez’s retaliation claim would proceed under

either petitioner’s approach or amicus’s. However,

amicus’s approach reaches more intuitive outcomes

than petitioner’s in other retaliatory arrest situations.

Imagine, for instance, a slight variant on the facts

of this case: A monthslong vendetta against Ms.

Gonzalez, but by an arresting officer; and the same

arrest for tampering with a government document, but

made “on the spot” instead of two months later. Under

petitioner’s rule, Nieves would apply and potentially

foreclose

Ms.

Gonzalez’s

claim,

vendetta

notwithstanding. By contrast, as explained supra, 810, amicus’s approach doesn’t turn on whether the

arrest is made immediately after the crime or on

whether the arresting officer or someone else was

sued.

Conversely, imagine that, instead of arresting her

two months after the city council meeting for

tampering with government property, defendants

instead arrest Ms. Gonzalez two months later for

violating a statute that prohibits impairing police

department operations (let’s say her petitioning

activity led citizens to stop cooperating with police).

Under petitioner’s rule, Mt. Healthy would govern,

since Ms. Gonzalez was arrested well after her

purported crime, not “on the spot.” But it would be

difficult to disentangle the protected petitioning

activity from the offense, and it’s quite possible that

Ms. Gonzalez’s actual quarrel is with the statute

purportedly criminalizing her advocacy. It would

make more sense to apply Nieves. Amicus’s approach

would do so, because the petitioning activity was a

“wholly legitimate consideration” in determining

whether Ms. Gonzalez had impaired police operations.

III. Amicus’s approach better calibrates First

Amendment analysis across a wide range of

cases than the Fifth Circuit’s rule.

The Fifth Circuit held that plaintiffs in virtually

all retaliatory arrest cases are required to make

Nieves’s additional showings. That holding blocks

meritorious cases and prevents courts from reaching

important First Amendment questions. Amicus’s

approach remedies those problems by requiring courts

to ask the right questions in each case.

1. Under the broad interpretation of Nieves,

potentially meritorious First Amendment retaliatory

arrest cases have failed. In Galarnyk v. Fraser, for

example, a bridge safety consultant went on “Geraldo

at Large,” a FOX News TV show, to criticize

government agencies in the aftermath of a bridge

collapse. 687 F.3d 1070, 1071 (8th Cir. 2012). About a

week later, Galarnyk visited the collapse site. Id. at

1072. He was asked to leave a restricted area. He

complied but was nevertheless arrested for

trespassing. The arresting officer stated to a colleague:

“Do you know who that guy is? He was on Geraldo.

We’ve got to keep him locked up in a deep, dark room

so he doesn’t get any more information as long as we

can.” Id. at 1073.

The Eighth Circuit assumed that every retaliatory

arrest plaintiff must prove a lack of probable cause. Id.

at 1076. Because Galarnyk could not, the Eighth

Circuit granted summary judgment to officers. Id.

But plaintiff should not have been required to

satisfy either of the two additional Nieves

requirements. The protected activity (criticizing

government agencies on FOX News) was not a “wholly

legitimate consideration” in the arrest decision

because appearing on TV has nothing to do with

trespassing. Instead, a court should only have applied

only Mt. Healthy and considered whether the

evidence—and, in particular, the officer’s statement

about locking the plaintiff “in a deep, dark room” for

appearing on television—was sufficient to show that

the protected activity was a “motivating factor” in the

arrest. And even then, under Mt. Healthy, the

arresting officer could still avoid liability by proving

he would still have made the arrest regardless of

Galarynk’s public criticism.

2. Even where protected activity happens

simultaneously with allegedly unlawful activity, the

protected activity may not be a “wholly legitimate

consideration” in the arrest decision. Amicus’s

approach identifies those situations and applies the

correct test—Mt. Healthy.

For instance, in Boykin v. City of New York, a

freelance reporter followed a protest on a highway and

published photographs of the protest online. 2022 WL

4585299, at *1 (S.D.N.Y. Sept. 29, 2022), aff’d, 2023

WL 7383147 (2d Cir. Nov. 8, 2023). Police arrested

Boykin for “walking on a highway,” even though the

road was already closed to traffic. Id. The next day, the

New York City Mayor’s press secretary apologized to

Boykin, acknowledging that the arrest “never should

have happened.” Id. Boykin sued for retaliatory arrest.

The Second Circuit held that Boykin had to make

one of the Nieves additional showings. 2023 WL

7383147, at *3. Because he could show neither a lack

of probable cause nor comparator evidence, the court

dismissed Boykin’s case at the pleading stage. Id.

By contrast, if Nieves were applied only where

protected activity was a “wholly legitimate

consideration” in the arrest decision, Boykin would

have only needed to carry his burden under Mt.

Healthy—showing that his protected activity was a

“motivating factor” in his arrest. Boykin’s protected

activity—documenting a protest—was not a “wholly

legitimate consideration” in deciding whether to arrest

him for walking on a highway.

That wouldn’t mean Boykin’s claim would prevail.

If the only evidence of retaliation was the fact of

protected activity and the fact of arrest, he would lose

at Mt. Healthy’s first step. And even if Boykin could

carry his burden under the first step of Mt. Healthy,

the officer may well be able to win under the second

step.

3. In some cases, broadly applying Nieves

prevents courts from detecting core First Amendment

harms, such as unlawful prior restraint. In Lund v.

City of Rockford, for example, a reporter claimed he

was arrested in retaliation for photographing a police

sting operation. 956 F.3d 938, 943 (7th Cir. 2020).

Police were determined to prevent him from

publishing the photographs, so they followed him and

arrested him when he committed a traffic violation:

driving his motorized bicycle the wrong way down a

one-way road. Id. at 941-42. He was also charged with

other crimes, including, as relevant here, obstructing

a police investigation. Id. at 942.

Because the Seventh Circuit (like the Fifth)

applies Nieves to all First Amendment retaliatory

arrest cases against officers, it rejected plaintiff’s

claim: The officers had probable cause for the traffic

violation, and the plaintiff produced insufficient

comparator evidence. Id. at 944-46. That resolved the

case.

As a result, the Seventh Circuit did not analyze

the obstruction offense. According to the officers, Lund

was about to commit the obstruction offense by

publishing his photos on social media while the sting

was ongoing, potentially “creat[ing] a danger for the

undercover officers who were unarmed in a high crime

area.” Id. at 942. But making an arrest to prevent a

journalist from publishing photos is, in effect, a prior

restraint on speech. Such a prior restraint comes with

a “heavy presumption against its constitutional

validity.” See Carroll v. Princess Anne, 393 U. S. 175,

181 (1968) (citation omitted). To be sure, this

particular prior restraint may have been valid given

the serious concerns about officer safety. The Seventh

Circuit’s broad application of Nieves, however,

pretermitted that important constitutional question

when officers managed to arrest speakers on a

makeweight charge.

Amicus’s approach, by contrast, would have teed

up the relevant First Amendment questions. First, the

court would have looked at the obstruction offense.

Because protected activity (attempting to publish

photos) was a “wholly legitimate consideration” in the

arrest decision, Nieves would apply. Lund would have

had two options. Either he would have needed to show

that the officer lacked probable cause—that is, that

the obstruction statute didn’t contemplate this sort of

prior restraint. Or he would have needed to produce

comparator evidence. See supra, 9-10. And remember,

Lund would have had the opportunity to argue that

the obstruction statute itself was unconstitutional as

applied to him.

If Lund had succeeded as to the obstruction

charge, the court would have gone on to analyze the

charge of biking the wrong way down a one-way street.

Mt. Healthy would have applied to that charge

because Lund’s photography was not a “wholly

legitimate consideration” in assessing whether he had

traveled the wrong way down a one-way street. Lund

would have had the opportunity to show that his

photography was nevertheless a “motivating factor” in

the arrest decision. And officers would have had the

chance to prove they would have arrested Lund even

absent the photography.

The key point is this: The court wouldn’t end its

analysis simply by finding Lund biked the wrong way

down a one-way street. Instead, it would tackle the

important First Amendment questions raised by the

obstruction statute and the possibly pretextual biking

arrest.

4. Finally, limiting Nieves to cases where

protected

activity

“wholly

legitimate

consideration” in the arrest decision properly handles

cases where the officer faithfully applies the law, but

the law itself potentially violates the First

Amendment. In Sexton v. City of Colorado Springs,

Colo., a plaintiff observed a traffic stop then yelled at

the officers: “Feel good about that? Harassing and

taxing? These are innocent civilians.” 2022 WL

168714, at *1 (D. Colo. Jan. 19, 2022). He began

filming and yelling expletives. Id. After an officer

warned Sexton that he could “yell his opinions of the

police, but that using the word ‘fuck’ was against the

law,” Sexton was arrested for offenses including

disorderly conduct. See id. at *2-3. He sued.

Under amicus’s approach, Nieves would apply to

Sexton’s retaliation claim because Sexton’s protected

activity was a “wholly legitimate consideration” in his

arrest. That is, the basis for the arrest was Sexton’s

protected activity—his use of expletives. The district

court therefore properly rejected Sexton’s retaliation

claim because he could not make the additional Nieves

showings. See Sexton, 2022 WL 168714, at *8-10.

But because the law made Sexton’s protected

activity a “wholly legitimate consideration” in the

arrest decision, see Nieves, 139 S. Ct. at 1724 (citation

omitted), the district court correctly allowed Sexton’s

as-applied challenge to the disorderly conduct statute

to proceed, see Sexton, 2022 WL 168714, at *10-12. As

Judge Thapar has observed, statutes that make

protected activity a legitimate consideration for

arrests give police “cover to retaliate against all kinds

of speech under the banner of probable cause.” See

Novak v. City of Parma, 932 F.3d 421, 432 (6th Cir.

2019). And under amicus’s approach, the

circumstances where suing the arresting officer

himself will be the most difficult are precisely those

where a challenge to the statute itself is most

appropriate.

IV. The Fifth Circuit’s rule undermines traditional

First Amendment values.

Amicus’s approach is preferable to the Fifth

Circuit’s because it accords with this Court’s First

Amendment doctrine, aligns with the history of the

First Amendment, and vindicates constitutional rights

in an important context.

1. Aligns With Doctrine. Scrutiny of governmental

motive is at the core of a retaliation claim. Supra, 3-4.

Retaliation “threatens to inhibit exercise of the

protected right,” Crawford-El, 523 U.S. at 588 n.10,

not only by the person against whom adverse action is

taken but also by all others watching. After all, to

punish one “tells the others that they engage in

protected activity at their peril.” Heffernan, 578 U.S.

at 273.

Applying Nieves broadly is at odds with those

First Amendment principles. Nieves uses a Fourth

Amendment concept—probable cause—that is purely

objective; the officer’s motive is “irrelevant.”

Devenpeck v. Alford, 543 U.S. 146, 153 (2004). But the

First Amendment retaliation inquiry “serves a

different purpose” and “does not depend on the

presence or absence of probable cause.” Nieves, 139 S.

Ct. at 1732 (Gorsuch, J., concurring in part and

dissenting in part).

Because of the doctrinal tension between the

Fourth Amendment probable cause concept and the

First Amendment retaliation analysis, probable cause

should rarely play a dispositive role in First

Amendment cases. The exception, as explained supra,

8-10, is where protected activity is a “wholly legitimate

consideration” in the decision to arrest.

2. Aligns With Founding-Era History. FoundingEra history confirms a long tradition—far predating

Mt. Healthy—of prohibiting punishment because of

protected expression.

That tradition came to the Founders by way of

British constitutional law. In the Seven Bishops’ Case

of 16883—“one of the most notable attempts to crush”

liberty in British constitutional history—seven

bishops who petitioned against the king’s Declaration

of Indulgences were prosecuted for seditious libel.4

That prosecution spawned an enduring commitment

not only to the right to petition but also to protecting

that right against governmental retaliation. The

English Bill of Rights declared both a “Right of the

Subjects to petition the King” and outlawed “all

Commitments and Prosecutions for such Petitioning.”5

From there came the First Amendment’s Petition

Clause.6

Moreover, the Founders specifically feared

retaliation against dissenters. They warned that

officials would often be motivated to suppress criticism

and would take retaliatory action based on that intent.

As an influential colonial-era essayist put it, free

expression is “the great Bulwark of Liberty” and “the

Terror of Traytors and Oppressors.”7 As such,

12 How. St. Tr. 183 (K.B. 1688).

See Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest upon the Legislative Power of the States

of the American Union 349 (2d ed. 1871).

1 Will. & Mar. Sess. 2, c. 2 (1689).

See Sources of Our Liberties: Documentary Origins of

Individual Liberties in the United States Constitution and Bill of

Rights 227-28 (Richard L. Perry & John C. Cooper eds. 1959).

Thomas Gordon & John Trenchard, No. 15: Of Freedom of

Speech: That the Same is Inseparable from Publick Liberty (Feb.

4, 1720), reprinted in 1 Cato’s Letters, or Essays on Liberty, Civil

and Religious, and Other Important Subjects 96, 100 (4th ed.

1737) [Cato’s Letters]. Cato’s Letters were “the most popular,

quotable, esteemed source of political ideas in the colonial

period.” Clinton Rossiter, Seedtime of the Republic: The Origin of

the American Tradition of Political Liberty 141 (1953).

governmental officials are prone to “endeavour[ing] to

restrain” critical views.8 One prominent voice during

the ratification debates argued that government

officials in a republic were just like “any King in

Europe” in that they were “liable to personal prejudice,

and to passion.”9 The Founders were thus wary that

an official, motivated by animus, “might prosecute a

bold writer, or any other person, who had become

obnoxious to their resentment.”10 Mt. Healthy’s

proscription on adverse governmental action taken

because of protected activity is the modern response to

the Founders’ concerns.

3. Preserves First Amendment Protections. For at

least three reasons, the Court’s sensitivity for First

Amendment activity should be at its apex in cases like

this one.

Cato’s Letters No. 15, supra note 7, at 101.

A Native of Virginia, Observations upon the Proposed Plan

of Federal Government (Apr. 2, 1788), reprinted in 9 The

Documentary History of the Ratification of the Constitution

Digital Edition 655, 686 (John P. Kaminski et al. eds. 2009).

Id. Indeed, the very probable cause requirement that

Nieves relied on was historically used to protect the right of

petitioners to dissent. The probable cause requirement was

developed to protect government critics from libel suits brought

by government officials. See Thorn v. Blanchard, 5 Johns. 508,

528, 530 (N.Y. Ct. for Corr. of Errors 1809) (urging protection for

government critics in suits where only evidence of malice is

petition itself); Gray v. Pentland, 2 Serg. & Rawle 23, 30 (Pa.

1815) (relying on Thorn to develop probable cause requirement);

Howard v. Thompson, 21 Wend. 319, 330-31 (N.Y. Sup. Ct. of

Judicature 1839) (same); Bodwell v. Osgood, 20 Mass. 379, 379,

383-84 (1825) (same); see generally Cooley, supra note 4, at 43234.

First, speech critical of government conduct is “at

the very center of the constitutionally protected area

of free discussion.” Rosenblatt v. Baer, 383 U.S. 75, 85

(1965). The First Amendment reflects “a profound

national commitment to the principle that debate on

public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic,

and sometimes unpleasantly sharp attacks on

government and public officials.” N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964).

Second, in the context of an arrest, an officer

wields immense coercive authority that, when

misused, can go far to chill the exercise of First

Amendment rights. Arrests, even without convictions,

impose serious harms: An officer may “frisk” an

arrestee and search her belongings with few

constraints; he may strip search her before booking

and jailing her, subjecting her to the indignity of

incarceration while creating a permanent arrest

record that will follow her throughout her life. See

Utah v. Strieff, 579 U.S. 232, 252-54 (2016)

(Sotomayor, J., dissenting).

And third, Nieves’s focus on probable cause poses

acute challenges for plaintiffs. Probable cause is “not

a high bar.” See D.C. v. Wesby, 138 S. Ct. 577, 586

(2018) (citation omitted). Because of the sheer breadth

of criminal law today, “almost anyone can be arrested

for something.” Nieves, 139 S. Ct. at 1730 (Gorsuch, J.,

concurring in part and dissenting in part). This Court

has thus acknowledged that “police officers may

exploit the arrest power as a means of suppressing

speech.” Lozman, 138 S. Ct. at 1953. Indeed, as Judge

Ho has highlighted, the risk of public officials

“weaponiz[ing] the criminal justice system against

their political adversaries has never been greater.”

Pet. App. 5a (Ho, J., dissenting from denial of

rehearing en banc).

This case illustrates the threat that retaliatory

arrests can pose to First Amendment rights. A

seventy-two-year-old councilwoman helped organize a

petition criticizing the performance of the city

manager. For her troubles, she spent “a day in jail—

handcuffed, on a cold metal bench, wearing an orange

jail shirt, and avoiding using the restroom, which had

no doors and no toilet-paper holders.” Pet. App. 39a

(Oldham, J., dissenting). Even though the charges

against Ms. Gonzalez were dropped, she was “so

traumatized by the experience that she will never

again help organize a petition or participate in any

other public expression of her political speech[.]” Id.

40a. As Judge Oldham aptly summarized, the city

ultimately succeeded in silencing Ms. Gonzalez in an

“underhanded and permanent way.” Id. Any reading

of Nieves that fails to hold defendants accountable

would betray the values that lie at the core of the First

Amendment.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,