Amicus Curiae Brief — Sylvia Gonzalez, Petitioner v. Edward Trevino, II, et al.
Supreme Court briefJan 31, 2024
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No. 22-1025
In the
Supreme Court of the United States
SYLVIA GONZALEZ,
v.
Petitioner,
EDWARD TREVINO, II, MAYOR OF CASTLE HILLS,
SUED IN HIS INDIVIDUAL CAPACITY, ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF OF AMICI CURIAE ALASKA, FLORIDA,
MISSISSIPPI, MONTANA, NEBRASKA, NORTH DAKOTA,
OHIO, SOUTH CAROLINA, SOUTH DAKOTA, AND UTAH
IN SUPPORT OF RESPONDENTS
TREG TAYLOR
Attorney General of Alaska
KIMBERLY D. RODGERS
Assistant Attorney General
Counsel of Record
ALASKA DEPARTMENT OF LAW
1031 W. Fourth Ave., Suite 200
Anchorage, AK 99501
(907) 269-6612
kimber.rodgers@alaska.gov
Counsel for Amici Curiae
Additional Counsel
Ashley Moody
Attorney General
State of Florida
Dave Yost
Attorney General
State of Ohio
Lynn Fitch
Attorney General
State of Mississippi
Alan Wilson
Attorney General
State of South Carolina
Austin Knudsen
Attorney General
State of Montana
Marty Jackley
Attorney General
State of South Dakota
Michael T. Hilgers
Attorney General
State of Nebraska
Sean D. Reyes
Attorney General
State of Utah
Drew H. Wrigley
Attorney General
State of North Dakota
i
QUESTIONS PRESENTED
Nieves v. Bartlett held that probable cause bars a
retaliatory arrest claim except for “circumstances
where officers have probable cause to make arrests,
but typically exercise their discretion not to do so.” 139
S. Ct. 1715, 1727 (2019). To meet the “narrow”
exception, a plaintiff must show “that he was arrested
when otherwise similarly situated individuals not
engaged in the same sort of protected speech had not
been.” Id.
The questions presented are:
1. Whether the Nieves probable cause exception
can be satisfied by objective evidence other than
specific examples of arrests that never happened.
2. Whether the Nieves probable cause rule is
limited to individual claims against arresting officers
for split-second arrests.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED........................................ i
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION ........................................................1
SUMMARY OF ARGUMENT .....................................3
ARGUMENT ................................................................5
I.
The Nieves probable-cause bar and its narrow
exception allow meritorious claims to proceed
while efficiently screening out unfounded
claims ....................................................................5
II. The Nieves probable-cause bar applies to
§ 1983 claims for retaliatory arrest,
regardless of whether the arrest is made on
the spot or after deliberation .............................11
III. The Nieves exception to the probable-cause
bar applies only to warrantless arrests for
petty, commonplace crimes that rarely result
in arrest ..............................................................20
IV. Other mechanisms and remedies exist to
deter retaliatory arrests or correct abuses of
the arrest power .................................................28
CONCLUSION ..........................................................33
iii
TABLE OF AUTHORITIES
Cases
Alaska Police Standards Council v. Parcell,
348 P.3d 882 (Alaska 2015) ................................... 31
Atwater v. City of Lago Vista,
532 U.S. 318 (2001) ............................... 8, 21, 31, 32
Ballentine v. Tucker,
28 F.4th 54 (9th Cir. 2022)............. 17, 18, 25, 26, 27
Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971) ................................................ 28
Crawford-El v. Britton,
523 U.S. 574 (1998) .............................................. 2, 7
DeMartini v. Town of Gulf Stream,
942 F.3d 1277 (11th Cir. 2019) .............................. 16
Devenpeck v. Alford,
543 U.S. 146 (2004) .................................................. 8
Egbert v. Boule,
596 U.S. 482 (2022) ................................................ 28
Fernandez v. State,
619 S.W.3d 779 (Tex. Ct. App. 2020) ..................... 22
Gregoire v. Biddle,
177 F.2d 579 (2d Cir. 1949)...................................... 8
Hartman v. Moore,
547 U.S. 250 (2006) ....... 4, 7, 9, 10, 12-15, 19, 25, 26
Howards v. McLaughlin,
634 F.3d 1131 (10th Cir. 2011) .............................. 11
Kalina v. Fletcher,
522 U.S. 118 (1997) ............................................ 8, 21
iv
Lozman v. City of Riviera Beach, Fla.,
138 S. Ct. 1945 (2018) ...................... 5, 15, 16, 19, 29
Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367 (1996) ................................................ 16
Mills v. State,
941 S.W.2d 204 (Tex. Ct. App. 1996) ..................... 22
Monell v. New York City Dep’t of Social Services,
436 U.S. 658 (1978) ................................................ 16
Moore v. Hartman,
388 F.3d 871 (D.C. Cir. 2004) .................................. 9
Mt. Healthy City School District Board of Education
v. Doyle, 429 U.S. 274 (1977) ............................... 6, 7
Nieves v. Bartlett,
139 S. Ct. 1715 (2019) ............ 1-13, 15, 18-23, 26-28
Novak v. City of Parma,
932 F.3d 421 (6th Cir. 2019) .................................. 16
Riley v. California,
573 U.S. 373 (2014) ................................................ 18
Skoog v. County of Clackamas,
469 F.3d 1221 (9th Cir. 2006) ................................ 11
Sup. Ct. of Va. v. Consumers Union of U.S., Inc.,
446 U.S. 719 (1980) ................................................ 14
United States v. Morgan,
313 U.S. 409 (1941) ................................................ 14
United States v. Watson,
423 U.S. 411 (1976) .......................................... 18, 25
Will v. Michigan Dep’t of State Police,
491 U.S. 58 (1989) .................................................. 29
v
Constitution and Statutes
U.S. Const. amend. I ...................... 1, 2, 5, 7, 11, 26-28
U.S. Const. amend. IV ........................................... 8, 15
42 U.S.C. § 1983 ... 1-5, 8, 11, 14, 15, 21, 22, 28, 29, 33
Alaska Stat. § 12.25.180(b) ....................................... 32
Alaska Stat. § 18.65.150 ............................................ 31
Alaska Stat. § 18.65.240 ............................................ 31
Alaska Stat. § 18.65.242(a) ....................................... 31
Alaska Stat. § 18.65.245(2) ....................................... 31
D.C. Code § 5-1104 .................................................... 31
D.C. Code § 5-1105 .................................................... 31
D.C. Code § 5-1107 .................................................... 31
D.C. Code § 5-1112 .................................................... 31
Fla. Stat. Ann. § 901.09 (West) ................................. 24
Ga. Code § 17-4-40(a) ................................................ 23
725 Ill. Comp. Stat. 5/107-9(c) .................................. 23
Ind. Code Ann. § 35-33-4-1 (West) ............................ 23
Iowa Code Ann. § 804.1 (West) ................................. 23
Kan. Stat. Ann. § 22-2302 (West) ............................. 23
Ky. Rev. Stat. Ann. § 431.410 (West)........................ 24
La. Code Crim. Proc. Ann. art. 28............................. 24
Md. Code Ann., Crim. Proc. § 2-202.......................... 22
Md. Code Ann., Transp. § 7-705(b)(3), (e) ................. 22
Mass. Gen. Laws Ann. ch. 276, § 24 (West).............. 24
vi
Mich. Comp. Laws Ann. § 764.1a (West) .................. 24
Neb. Rev. Stat. Ann. § 29-425 ................................... 23
Okla. Stat. Ann. tit. 22, § 209(C) (West) ................... 24
Or. Rev. Stat. Ann. § 133.110 (West) ........................ 24
Or. Rev. Stat. Ann. § 133.055 (West) ........................ 24
Tex. Code Crim. Proc. Ann. art. 15.03 ...................... 23
Tex. Penal Code Ann. § 37.10(c)(1)
(West 2018) ........................................... 13, 22, 26, 27
Va. Code § 19.2-74 ..................................................... 32
Wis. Stat. Ann. § 968.04(1) (West) ...................... 24, 25
Wis. Stat. Ann. § 968.04(2)(b) (West) ................. 24, 25
Rules
Ala. R. Crim. P. 3.1 .................................................... 23
Alaska R. Crim. P. 4 .................................................. 24
Ark. R. Crim. P. 6.1 ................................................... 23
Colo. R. Crim. P. 9 ..................................................... 23
Conn. R. Super. Ct. Crim. Sec. 36-4.......................... 23
Del. Super. Ct. Crim. R. P. 4(a)................................. 23
Idaho Crim. R. 4 ........................................................ 24
Me. R. Unified Crim. P. 4(c)(2).................................. 23
Minn. R. Crim. P. 19.01 ............................................. 23
Mo. Sup. Ct. R. 21.03 ................................................. 24
N.H. R. Crim. 3(b)...................................................... 23
Ohio Crim. R. 4(A)(1)................................................. 25
vii
Utah R. Crim. P. 6(c) ................................................. 25
W. Va. Mag. Ct. R. Crim. P. 4 ................................... 24
W. Va. R. Crim. P. 4 .................................................. 24
Regulations
Alaska Admin Code tit. 13, § 85.900(7) .................... 31
Other Authorities
Joseph De Angelis et al., Civilian Oversight of Law
Enforcement: Assessing the Evidence (2016),
https://tinyurl.com/y94aelhc .................................. 30
Int’l Ass’n of Chiefs of Police, Building Trust
Between the Police and the Citizens They Serve
(2009),
https://portal.cops.usdoj.gov/resource
center/RIC/Publications/cops-w0724pub.pdf .............................................................. 29, 30
Nat’l Conference of State Legislatures, Citation in
Lieu of Arrest (updated March 18, 2019),
https://tinyurl.com/yd9wsf9d ................................. 32
The President’s Task Force on 21st Century
Policing Implementation Guide: Moving from
Recommendations to Action (2015), https://
portal.cops.usdoj.gov/resourcecenter/content.
ashx/cops-p341-pub.pdf .......................................... 30
Tom R. Tyler & Jeffrey Fagan, Legitimacy and
Cooperation: Why Do People Help Police Fight
Crime in Their Communities?, 6 Ohio St. J.
Crim. L. 231 (2008) ................................................ 30
U.S. Amicus Br., Nieves v. Bartlett, 139 S. Ct. 1715
(2019) (No. 17-1174), 2018 WL 4105539 ............... 11
1
INTEREST OF AMICI CURIAE
States have a substantial interest in the elements
governing First Amendment retaliatory arrest claims
under 42 U.S.C. § 1983 because these claims implicate
their vital interest in public safety and maintaining
order. Public safety depends on law enforcement
officers being willing and able to make arrests
authorized by law and supported by probable cause.
And the overwhelmingly majority of crimes fall under
state, not federal, jurisdiction, so enforcing the law is
an essential function for state and local governments.
Officers should not be deterred from making arrests
by fears of personal liability and unfounded litigation
requiring them to defend their state of mind against
subjective perceptions of retaliatory motive.
In addition to the states’ crucial interest in law
enforcement, states that indemnify their employees
for unfavorable judgments based on actions within the
scope of their employment have concrete financial
interests in minimizing their officers’ exposure to
liability.
INTRODUCTION
This case presents a First Amendment claim of
retaliatory arrest brought under 42 U.S.C. § 1983
seeking damages against three city officials—the
mayor, police chief, and a detective. Pet. App. 101a. A
councilwoman, Sylvia Gonzalez, alleges that they
engineered her arrest for tampering with a
government record in retaliation for her activities
organizing a citizen petition seeking the removal of
the city manager. Id. at 99a. But the court of appeals
properly dismissed Gonzalez’s claim under Nieves v.
2
Bartlett, 139 S. Ct. 1715 (2019), which requires that
she show either the absence of probable cause for her
arrest or that she was arrested for a very minor,
commonplace offense when similarly situated
individuals not engaging in protected First
Amendment activities were not. Gonzalez showed
neither. She admits that probable cause supported her
arrest. Pet. App. 26a. Indeed, an independent
magistrate issued the arrest warrant finding probable
cause that she had intentionally taken and concealed
the submitted petition after legal questions were
raised about how she obtained residents’ signatures.
J.A. 49, 52, 54-57. And Gonzalez’s allegations about
other record-tampering prosecutions, Pet. App. 117a,
do not show that city officials have ignored the record
tampering of others not engaged in protected
activities.
The Amici States urge this Court to affirm the
dismissal and reject Gonzalez’s answers to both
questions presented, which address the elements and
proof necessary for First Amendment retaliatory
arrest claims under § 1983.
The absence of probable cause is ordinarily an
essential element of all such claims, even when the
arrest was not on the spot, because of the inherent
causation complexities particular to these claims and
the risk of chilling legitimate law enforcement
activities with unfounded claims that are “easy to
allege and hard to disprove.” Nieves v. Bartlett, 139 S.
Ct. at 1723-25 (quoting Crawford-El v. Britton, 523
U.S. 574, 585 (1998)). Thus, the existence of probable
cause for Gonzalez’s arrest defeats her First
Amendment claim unless she satisfies an exception.
3
Gonzalez fails to satisfy the “narrow” exception
discussed in Nieves, which permits claims to proceed
only “where officers have probable cause to make
arrests, but typically exercise their discretion not to do
so.” Id. at 1727. The exception is crafted to avoid
swallowing the general rule, applying only in cases of
warrantless arrest for “very minor,” commonplace
criminal offenses that rarely result in arrest, like
jaywalking. Id. Gonzalez’s attempt to satisfy this
exception fails because the record-tampering offense is
not a petty, commonplace offense rarely resulting in
arrest, she was arrested under a warrant, and her
evidence does not compare her situation to others
similarly situated.
While in many cases a plaintiff may not be able to
maintain a § 1983 claim for damages against
individual defendants, that does not mean law
enforcement has unfettered discretion to exploit the
arrest power. Numerous protections exist at the
federal, state, and local level to prevent abuse. States
and municipalities provide for citizen complaints and
administrative review of police conduct to prevent
retaliatory arrests. State statutes place limitations on
the arrest power. And the United States points out
federal and state remedies against law enforcement
officials
who
willfully
violate
individuals’
constitutional rights and against agencies with a
pattern or practice of retaliatory arrests. U.S. Amicus
Br. 13.
SUMMARY OF ARGUMENT
I. Under Nieves v. Bartlett, probable cause bars a
retaliatory arrest claim unless the plaintiff satisfies
an exception for petty, commonplace offenses. 139 S.
4
Ct 1715, 1727 (2019). This strikes the right balance
between providing a damages remedy for
unconstitutional retaliation and avoiding excessive
interference with law enforcement. Speech—even
highly valued political speech—should not immunize
speakers who commit crimes from arrest. The
probable-cause bar and its narrow exception prevent
dubious claims from advancing to discovery and trial,
avoid peering into officers’ minds when their conduct
is (and should be) judged by an objective standard, and
give space for officers to do their jobs protecting public
safety. Id. at 1723-25.
II. The logic of Nieves, 139 S. Ct. at 1723-24, and
Hartman v. Moore, 547 U.S. 250, 262-63 (2006),
supports applying the probable-cause bar to claims
like Gonzalez’s, rather than limiting it as she asks.
Determining the true motives for an arrest presents
the same causal complexities whether the arrest is
made after deliberations or on the spot. Nieves, 139 S.
Ct. at 1723-24. Causation is complicated for
deliberative arrests because the protected activity is
often a “wholly legitimate consideration” in the arrest,
id., and, if a warrant is issued, the independent
decisionmaker, a magistrate, is not the § 1983
defendant with the purported retaliatory motive,
Hartman, 547 U.S. at 262-63. Gonzalez’s proposed
cabining of the probable-cause bar to on-the-spot
arrests would perversely disincentivize reflection and
obtaining warrants. And discerning the line between
on-the-spot and deliberative arrests would be difficult
for courts in many cases.
III. The Nieves exception permits retaliatory arrest
claims to advance in a narrow set of cases where
5
retaliation is more likely to be the but-for cause of an
arrest, despite the existence of probable cause. These
cases are warrantless arrests for “very minor”
commonplace offenses that “rarely result[] in arrest,”
like jaywalking. Nieves, 139 S. Ct. at 1727. Plaintiffs
arrested for these types of crimes must produce
“objective evidence” that they were arrested when
similarly situated individuals not engaging in
protected speech were not. Id. Gonzalez’s case—her
arrest under warrant for the serious criminal offense
of record-tampering—does not fit the exception. And
her evidence does not address individuals engaging in
criminal conduct like hers without being arrested.
IV. Section 1983 claims against individual
defendants are not the only solution to combat
retaliatory arrests. Other processes and remedies
exist to prevent retaliatory arrests and provide
correction or discipline if violations occur. These
include criminal and civil remedies, disciplinary
proceedings, and limits on the arrest power.
ARGUMENT
I.
The Nieves probable-cause bar and its
narrow exception allow meritorious claims
to proceed while efficiently screening out
unfounded claims.
Nieves strikes the right balance by permitting
recovery for the arrests most likely caused by
retaliatory animus while filtering out those that are
not. The First Amendment prohibits “the government
from retaliating against a person for having exercised
the right to free speech.” Lozman v. City of Riviera
Beach, Fla., 138 S. Ct. 1945, 1948 (2018). Yet speech—
6
even highly valued political speech—should not
immunize speakers who commit crimes from arrest.
And police officers need room to act to protect public
safety without fear of facing difficult-to-defend
dubious lawsuits. Nieves v. Bartlett, 139 S. Ct. 1715,
1725 (2019). Because “probable cause speaks to the
objective reasonableness of an arrest,” its presence
offers weighty evidence of a non-retaliatory reason for
the arrest. Id. at 1724. This is why a plaintiff must
show the absence of probable cause to bring a
retaliatory arrest claim or satisfy a “narrow” exception
that applies only when “officers have probable cause
to make arrests, but typically exercise their discretion
not to do so.” Id. at 1725, 1727.
Gonzalez asks the Court to limit the Nieves
probable-cause bar only to “on-the-spot” arrests or to
stretch the narrow exception wide open so that any
“objective evidence that speech was the reason for the
arrest” satisfies it. Pet Br. 18, 20. Both these proposals
would fatally undermine a manageable rule helpful to
sorting out meritorious claims and to leaving space for
legitimate law enforcement.
A. As Gonzalez acknowledges, Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S.
274 (1977), established that “while the government
may not retaliate against its critics, critics do not get
special rights.” Pet. Br. 18. That case, in which a
public schoolteacher alleged that he was not rehired in
retaliation for his speech criticizing his employer,
required but-for causation to prove such a claim. 429
U.S. at 282-83, 287. It was not enough that the teacher
showed that his protected conduct played “a
substantial part” in the decision not to rehire him
7
because a “candidate ought not to be able, by engaging
in [protected] conduct, to prevent his employer from
assessing his performance record and reaching a
decision not to rehire on the basis of that record,
simply because the protected conduct makes the
employer more certain of the correctness of its
decision.” Id. at 285-86. Instead, the teacher’s showing
shifted the burden to the school board to establish by
a preponderance of the evidence that it would have
reached the same decision without the protected
conduct. Id. at 287.
B. For claims of retaliatory arrest and prosecution,
the Court still required but-for causation but limited
the application of the Mt. Healthy framework.
Hartman v. Moore, 547 U.S. 250, 259, 265-66 (2006);
Nieves, 139 S. Ct. at 1723. Observing that “a state of
mind is ‘easy to allege and hard to disprove,’” the
Court refused to do a subjective inquiry into intent
without a threshold showing that probable cause for
the arrest or prosecution was absent. Nieves, 139 S.
Ct. at 1725 (quoting Crawford-El v. Britton, 523 U.S.
574, 585 (1998)). A case proceeds to the Mt. Healthy
burden-shifting framework only if probable cause was
absent or if the plaintiff provides evidence that she
was arrested without a warrant for a very minor
offense when similarly situated individuals not
engaging in protected First Amendment activities
were not. Id. at 1725, 1727.
The Court adopted the probable-cause bar for
several reasons.
Judging an arrest at the outset by its objective
reasonableness was consistent with the Court’s
longstanding rejection of invitations to probe
8
subjective intent in the Fourth Amendment searchand-seizure context. Id. at 1724. An objective standard
did not “compromise evenhanded application of the
law by making the constitutionality of an arrest ‘vary
from place to place and from time to time’ depending
on the personal motives of individual officers.” Id. at
1725 (quoting Devenpeck v. Alford, 543 U.S. 146, 154
(2004)).
In addition, “common-law principles that were well
settled at the time of [§ 1983’s] enactment” supported
the probable-cause bar because the common-law torts
most like a retaliatory arrest based on protected
speech
(false
imprisonment
and
malicious
prosecution) barred suits if probable cause was
present. Id. at 1726 (quoting Kalina v. Fletcher, 522
U.S. 118, 123 (1997)).
The probable-cause bar also avoided stifling
legitimate law enforcement, “dampen[ing] the ardor of
all but the most resolute, or the most irresponsible, in
the unflinching discharge of their duties.” Id. at 1725
(quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.
1949)). If officers fear difficult-to-defend litigation
where they face personal liability, they may arrest less
often, resulting in fewer arrests and some of the guilty
going free. Atwater v. City of Lago Vista, 532 U.S. 318,
351 (2001). Where unlawful conduct coincides with
speech critical of government, police might hesitate to
arrest in time to prevent the conduct from escalating
and endangering the lives of the government officials
or the public. “Multiplied many times over, the costs
to society of such underenforcement could easily
outweigh the costs to defendants of being needlessly
arrested and booked.” Id. Furthermore, “policing
9
certain events like an unruly protest would pose
overwhelming litigation risks. Any inartful turn of
phrase or perceived slight during a legitimate arrest
could land an officer in years of litigation.” Nieves, 139
S. Ct. at 1725.
Lastly, probable cause was a ready-made, objective
answer to sorting out motives. It carries “powerful
evidentiary significance” in determining whether an
arrest or prosecution was due to an official’s purported
animus or a plaintiff’s potentially criminal conduct.
Hartman, 547 U.S. at 261; see Nieves, 139 S. Ct. at
1724. In almost all cases, the existence of probable
cause for a potential crime provides compelling nonretaliatory grounds sufficient to result in arrest, even
if an officer also has retaliation in mind. Nieves, 139 S.
Ct. at 1724.
Of course, the existence of probable cause is “not
necessarily dispositive” of causation, Hartman, 547
U.S. at 265, and the probable-cause bar occasionally
screens out meritorious claims. In fact, the Hartman
case had strong evidence of retaliatory motive against
speech of the highest order—the court of appeals
observed that it came “close to the proverbial smoking
gun,” Moore v. Hartman, 388 F.3d 871, 884 (D.C. Cir.
2004). Yet the Court still concluded that probable
cause barred the claim. Hartman, 547 U.S. at 265-66.
The Court recognized that strong evidence of
retaliatory causation would occasionally coexist with
probable cause to bring charges. Id. at 264. But rather
than fashioning a rule based on the most egregious
circumstances—which “are likely to be rare and
consequently poor guides in structuring a cause of
action”—the Court defined the elements of a
10
retaliatory prosecution claim, just as it did for
retaliatory arrest, with an eye to the typical case. Id.;
see Nieves, 139 S. Ct. at 1723. For retaliatory
prosecutions, probable cause is an absolute bar to suit.
Hartman, 547 U.S. at 265-66. For retaliatory arrests,
it bars a claim against individuals unless the criminal
offense is one for which officers typically exercise their
discretion not to arrest. Nieves, 139 S. Ct. at 1727.
This narrow exception is designed to avoid
screening out meritorious retaliatory arrest claims in
a subset of cases where “probable cause does little to
prove or disprove the causal connection between
animus and injury.” Id. The exception allows
retaliation claims to proceed in a case of a warrantless
arrest for a “very minor,” commonplace crime that
“rarely results in arrest.” Id. The fact that probable
cause so rarely inspires an arrest for these petty,
commonplace offenses suggests that, if protected
speech coincided with the arrest, the arrest was
chiefly motivated by animus for that speech, not
probable cause. Yet at the same time, the exception
has guardrails to avoid swallowing the general rule. A
plaintiff’s claim proceeds only if the inference of
retaliation is strengthened by a showing of “objective
evidence” that the plaintiff “was arrested when
otherwise similarly situated individuals not engaged
in the same sort of protected speech had not been.” Id.
C. The Court should reject Gonzalez’s invitation to
decide this case in a way that restricts the probablecause bar or expands the narrow exception to swallow
the general rule. Doing so would mark a return to
officers routinely facing trial on insubstantial
retaliatory arrest claims.
11
The pre-Nieves experience in the Ninth and Tenth
circuits is telling. Before Nieves, these circuits allowed
retaliatory arrest suits to proceed even when probable
cause supported the arrest. Skoog v. County of
Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006);
Howards v. McLaughlin, 634 F.3d 1131, 1148-49 (10th
Cir. 2011). But despite officers enduring years of
litigation, apparently not a single plaintiff convinced
a jury that retaliation was the but-for cause of an
arrest supported by probable cause. U.S. Amicus Br.
24, Nieves, 139 S. Ct. at 1715 (No. 17-1174), 2018 WL
4105539 at *24.
* * *
Nieves provides a workable rule. Modifying it to
permit Gonzalez’s retaliatory arrest claim against the
individual defendants would lead to unnecessary
litigation chilling law enforcement without a
meaningful increase in the protection of First
Amendment rights.
II. The Nieves probable-cause bar applies to
§ 1983 claims for retaliatory arrest,
regardless of whether the arrest is made on
the spot or after deliberation.
Gonzalez asks the Court to limit Nieves to claims
against police officers for on-the-spot arrests, see Pet.
Br. 30-34, but her request finds no purchase in the
language or logic of that decision or the Court’s other
retaliatory arrest and prosecution cases. Gonzalez’s
proposed rule is unworkable and undesirable.
Fortunately, “nothing” in Nieves “cabins its holding to
actions of officers in the line of duty.” Pet. App. 30a
n.6. Requiring Gonzalez—and others arrested after
12
investigatory periods—to show an absence of probable
cause makes sense because these claims raise the
same causation difficulties discussed in Nieves, 139 S.
Ct. at 1723-25 and Hartman v. Moore, 547 U.S. 250,
262-64 (2006). And applying the probable-cause bar to
all types of retaliatory arrest claims avoids perversely
disincentivizing officers from deliberating and
obtaining warrants.
A. Gonzalez’s claim presents the same layered
causation difficulties as explained in Nieves, 139 S. Ct.
1723-25, and Hartman, 547 U.S. at 262-64. Her case
is a prime example of why this Court should not
categorically except arrests that are not “on the spot”
from the probable-cause bar.
The first causal complexity is one that Gonzalez’s
case shares with Nieves: As is often true, the protected
speech or activity was a “wholly legitimate
consideration” in the decision to arrest. 139 S. Ct. at
1724.
In Nieves, a trooper concluded that an
intoxicated man at a raucous and remote winter
festival was a safety threat and arrested him after he
accosted troopers investigating underage drinking. Id.
at 1720-21. In part, the content of the man’s speech—
berating a trooper questioning a minor and
belligerently yelling at others not to talk to the
police—supported the reasonableness of the arrest. Id.
at 1720, 1724.
So too here. Gonzalez’s protected advocacy
legitimately factored into the investigating detective’s
decision to seek an arrest warrant for recordtampering because it revealed a motive for her actions.
J.A. 52. At the meeting that ended with Gonzalez
concealing the public petition submitted to the city, a
13
resident accused her of making misrepresentations
while lobbying for petition signatures. J.A. 45-47, 4950. And the subsequent investigation revealed that
Gonzalez had told a different resident to forge his
parents’ signatures on the petition. J.A. 56-57. Thus—
based on Gonzalez’s protected activities—the
detective believed that she may have tried to take the
petition to avoid scrutiny of her signature-gathering
efforts. J.A. 52. Because the record-tampering offense
requires the intentional destruction, concealment, or
removal of a governmental record, Tex. Penal Code
Ann. § 37.10(c)(1) (West 2018), Gonzalez’s possible
motive for concealing the petition—inextricably tied to
her protected activity—supported the finding of
probable cause. And even though Gonzalez did not sue
the arresting officer, she sued officials involved in the
decision—the mayor who initiated the investigation,
the police chief who assigned the work, and the
detective who sought an arrest warrant. Pet. App.
101a-102a; J.A. 6, 42-43. Requiring her to show an
absence of probable cause helps disentangle the
detective’s and other officials’ purported animus from
proper consideration of her protected activity.
On top of this, Gonzalez’s case is causally complex
for another reason. Unlike the Nieves suspect, who
was arrested due to the defendant troopers’ on-thespot decision, 139 S. Ct. at 1720-21, Gonzalez was
arrested pursuant to a warrant issued by an
independent third party with absolute immunity from
suit (a magistrate). Pet. App. 114a-15a. This makes
Gonzalez’s case analogous to a Hartman claim for
retaliatory prosecution. 547 U.S. at 261-63. In both
cases,
plaintiffs
cannot
sue
the
ultimate
decisionmakers—the prosecutor or judge—because
14
they are shielded from § 1983 damages liability. Id. at
262 (prosecutorial immunity); Sup. Ct. of Va. v.
Consumers Union of U.S., Inc., 446 U.S. 719, 734-35
(1980) (judicial immunity). In both cases, therefore,
plaintiffs may prevail only by proving that a
government official acting for retaliatory reasons
induced an immune decisionmaker to reach a
conclusion he or she would not have otherwise made
based on the facts or evidence alone. Hartman, 547
U.S. at 261-63. That is a difficult causal chain to link
up.
But there’s more. A prosecutor’s decision to pursue
charges is accorded a presumption of regularity, id. at
263, and judges, too, are presumed fair and neutral,
United States v. Morgan, 313 U.S. 409, 421 (1941)
(calling judges “men of conscience and intellectual
discipline, capable of judging a particular controversy
fairly on the basis of its own circumstances”). To
outweigh these presumptions, plaintiffs would need
ample evidence of a retaliatory government official’s
inducement.
All these causal complexities heighten the
evidentiary
value
of
the
probable-cause
determination. Establishing the absence of probable
cause eliminates a legitimate reason for making the
decision, allowing for an inference that the official’s
purported retaliatory motive tainted the presumedly
fair decisionmaker’s action. Hartman, 547 U.S. at 263.
Given the causation hurdles, Hartman held that the
existence of probable cause is reason enough to
conclude that a prosecution would have occurred
despite the purported retaliation and to bar a
retaliatory prosecution claim—without exception—
15
when there is probable cause. Id. 265-66. Nieves
extended this rule to retaliatory arrest, subject to a
“narrow qualification” for warrantless arrests for very
minor offenses, discussed further in Section III below.
139 S. Ct. at 1727. The same logic applies to
Gonzalez’s claim: Her concession of probable cause
should defeat her claim unless she satisfies the limited
Nieves exception.
B. Lozman v. City of Riviera Beach, Fla., 138 S. Ct.
1945 (2018), is too far afield to be of any use to
Gonzalez. She frames that case as an example of a
“deliberative, premediated retaliatory arrest” that
was not defeated by probable cause and that is
consequently analogous to hers. Pet. Br. 30-31, 34. But
the Lozman plaintiff’s retaliatory arrest claim did not
survive
dismissal because
his arrest
was
“deliberative,” rather than “on the spot.” 138 S. Ct. at
1954. (In any event, his arrest was on the spot after he
refused to end his public comments at a council
meeting. Id. at 1949-50.)
What separated the Lozman plaintiff’s claim from
the usual retaliatory arrest claim was that he sued the
city under § 1983 and a necessary element of a claim
against a city is “the existence and enforcement of an
official policy motivated by retaliation.” Id. at 1954.
The requirement to prove an official policy was
indispensable to alleviating the Court’s concerns
about retaliatory arrest suits. Id. First, the Court
required “objective evidence” of such a policy,
satisfying the preference for objective standards
consistent with the Fourth Amendment. Id.; see
Nieves, 139 S. Ct. at 1724. Second, elevating
retaliation against protected speech to the level of
16
official policy is presumably rather uncommon,
presenting “little risk of a flood of retaliatory arrest
suits.” Lozman, 138 S. Ct. at 1954. Plus, the need for
objective evidence of the official policy would screen
out meritless claims. See id. Third and finally,
causation was “not of the same difficulty” when the
official policy is retaliation for prior, protected speech,
not for speech legitimately factoring into the arrest
decision. Id.
Gonzalez does not contend that her claim against
the individual defendants survives because her arrest
was due to an official policy of retaliation, 1 Pet. Br. 3031, so her reliance on Lozman is misplaced.
C. Gonzalez also argues that only time-pressured
arrests require the probable-cause bar because more
objective evidence of retaliatory motive may emerge
with more time. Pet. Br. 19, 33-34. But the passage of
To the extent that Gonzalez or her amici suggest this
argument, that issue is not on review and should not be
considered. E.g., Matsushita Elec. Indus. Co. v. Epstein, 516 U.S.
367, 379 n.6 (1996) (declining to reach an issue “outside of the
scope of the question on which we granted certiorari”). The court
of appeals decided that Lozman’s holding, 138 S. Ct at 1955, was
limited to claims against a municipality brought under Monell v.
New York City Dep’t of Social Services, 436 U.S. 658 (1978) and
thus did not apply to Gonzalez’s claim against the individual
defendants. Pet. App. 30a-32a (agreeing with sister circuits that
Lozman is so limited (citing Novak v. City of Parma, 932 F.3d
421, 429-30 (6th Cir. 2019) and DeMartini v. Town of Gulf
Stream, 942 F.3d 1277, 1294 (11th Cir. 2019))). Gonzalez did not
include this issue in her questions presented, Pet. i, thus
abandoning any claim of error. She did, however, bring a Monell
claim against the city, which was permitted to proceed under
Lozman and is currently stayed pending this appeal. Pet. Br. 16
n.3; Pet. App. 32a, 73a-78a, 89a-96a.
1
17
time allows for more deliberation—strengthening the
finding of probable cause—so the bar is just as useful
as a tool for accurately and quickly resolving claims
involving after-the-fact arrests. The passage of time in
Gonzalez’s case allowed for an investigation, including
reviewing the meeting video and interviewing petition
signers. J.A. 43-57. This produced the necessary facts,
establishing an intentional taking of a government
document and Gonzalez’s potential motive, to support
the finding of probable cause. J.A. 49, 52, 56-57.
Or take Gonzalez’s example of Ballentine v. Tucker,
in which activists who chalked messages critical of law
enforcement were arrested after the fact, rather than
on the spot. 28 F.4th 54 (9th Cir. 2022). There,
although the passage of time between the illegal acts
and the arrests produced some objective evidence of a
retaliatory motive, it also strengthened the finding of
probable cause. Id. at 59-60. The officers observed the
protesters chalking statements on the sidewalk, which
was expensive to clean up, on three different
occasions. Id. at 59-60. The first time, the officers
asked the activists to clean up the chalk and they
would not be cited, encouraged them to protest with
signs instead, and ultimately cited them when they
did not stop chalking. Id. at 59. But the activists
violated the anti-graffiti statute two more times. Id. at
59-60. During the third incident, the investigating
detective, whom the activists later sued, disagreed
with a chalked statement, stating that it was false
that no city officer had ever been prosecuted for
murder. Id. at 60. He did not take any action against
them that day. Id. Three weeks later, the activists
were arrested under warrants. Id. The repeat offenses
and the neutral magistrate’s issuance of the arrest
18
warrants strengthened the presumption underlying
the probable-cause bar—that the arrest would have
occurred anyway due to probable cause, despite the
detective’s allegedly retaliatory motive. 2
Thus, rather than supporting Gonzalez’s point, the
facts of Ballentine illustrate that the probable-cause
bar is a useful tool for any type of arrest.
D. Worse, Gonzalez’s proposed distinction between
on-the-spot and deliberative arrests is unworkable.
Her dividing line would encourage officers to make
snap judgments and not seek warrants. Abolishing the
probable-cause bar for deliberative arrests would
make it easier for plaintiffs’ claims to proceed to
discovery and trial, resulting in less protection for
officers if they obtain a warrant or take time for
consultation or reflection before making an arrest
than if they do not. This is nonsensical. Warrants are
a safeguard for liberty that was “one of the driving
forces behind the [American] Revolution,” Riley v.
California, 573 U.S. 373, 403 (2014), and the preferred
method for conducting arrests, United States v.
Watson, 423 U.S. 411, 423 (1976).
Even if Gonzalez’s proposed dividing line made
sense, she does not explain how to draw it. She defines
an “on the spot arrest” as “probable cause and the
arrest arise in a single event based on the officer’s
observations.” Pet. Br. 28. But as the United States
explains, what constitutes a “single event” is unclear.
2 The Ninth Circuit ultimately allowed the activists’ retaliatory
arrest claim to advance because they produced evidence meeting
the Nieves exception, not because the probable-cause bar was
inapplicable to after-the-fact arrests. Ballentine, 28 F.4th at 62.
19
See U.S. Amicus Br. 32. Gonzalez’s conception of a
“single event” seems to exclude anytime an officer has
a few minutes to reflect or consult with others,
perhaps while returning to his patrol car with a
driver’s license to check for outstanding warrants.
The arrest in Nieves—an archetypical warrantless
arrest—does not even neatly fall onto one side or the
other of Gonzalez’s proposed dividing line. Rather
than a single event based on the observations and
judgment of one trooper, Nieves involved two troopers
and two separate encounters several minutes apart,
ending in the suspect’s arrest when one trooper rushed
to the other’s aid. 139 S. Ct. at 1720-21. Yet Gonzalez
acknowledges that Nieves exemplifies the “mine run of
arrests” to which the probable-cause bar does and
should apply. Pet. Br. 31 (quoting Lozman, 138 S. Ct.
at 1954).
E. Lastly, as the United States explains, history
undermines Gonzalez’s proposed dividing line. U.S.
Amicus Br. 28-31. Such a distinction is “absent from
the two common-law claims that Nieves identified as
most analogous to retaliatory arrest—malicious
prosecution and false imprisonment—each of which
imposed a [probable-cause bar], regardless of whether
a claim arose in the context of a split-second arrest.”
Id. at 9. Gonzalez argues that abuse of process, which
does not have a probable-cause bar, is the closest
parallel. Pet. Br. 45-47. But that ignores the Nieves
determination, 139 S. Ct. at 1726, as well as the
Hartman v. Moore decision to adopt the probablecause bar for retaliatory prosecutions despite “debate”
over whether malicious prosecution or abuse of
process is the closer parallel, 547 U.S. 250, 258 (2006).
20
* * *
Regardless of the timing of the arrest, probable
cause efficiently and ordinarily rules out retaliation as
the but-for cause of an arrest. This Court should reject
Gonzalez’s proposal to abandon the requirement that
plaintiffs establish the absence of probable cause for
deliberative arrests whatever that may mean.
III. The Nieves exception to the probable-cause
bar applies only to warrantless arrests for
petty, commonplace crimes that rarely
result in arrest.
Probable cause defeats a retaliatory arrest claim
unless the criminal offense is one for which officers
“typically exercise their discretion” not to arrest even
when they have probable cause. Nieves, 139 S. Ct. at
1727. This “narrow” exception applies to warrantless
arrests for “very minor” commonplace offenses that
“rarely result[] in arrest,” like jaywalking. Id. If
applicable, the exception allows a plaintiff to proceed
with a retaliatory arrest claim by presenting “objective
evidence” that he or she “was arrested when otherwise
similarly situated individuals not engaged in the same
sort of protected speech had not been.” Id. Gonzalez’s
claim does not satisfy this exception because her crime
was not very minor, her arrest was not warrantless,
and her evidence did not show comparators.
A. The Nieves exception is carefully crafted to limit
it to warrantless arrests for petty, commonplace
criminal offenses, not for any type of arrest for any
crime. 139 S. Ct. at 1727.
The Court created the exception to account for the
modern expansion of the arrest power and the
21
weakness of probable cause as a tool for ruling out
retaliation in a subset of cases. Id. In holding that
probable cause bars retaliatory arrest suits, the Court
relied on “common-law principles that were wellsettled at the time of [§ 1983’s] enactment.” Id. at 1726
(quoting Kalina v. Fletcher, 522 U.S. 118, 123 (1997)).
But in the 150 years since § 1983’s enactment,
statutes in every state “‘permit warrantless
misdemeanor arrests’ in a much wider range of
situations—often whenever officers have probable
cause for ‘even a very minor criminal offense.’” Id. at
1727 (quoting Atwater v. City of Lago Vista, 532 U.S.
318, 344, 354 (2001)). Although officers now have the
power to arrest without a warrant for even very minor
offenses, in practice they generally do not. Thus, for
this subset of crimes, probable cause is less likely to
provide a sufficient explanation for a warrantless
arrest that rules out retaliatory animus as a but-for
cause. Id. Even if probable cause is present, animus
might explain why a very minor offense that
ordinarily results in a citation or no adverse action
leads to a warrantless arrest of a violator hurling
insults at an officer. In Nieves, the Court concluded
that this circumstance merited an exception to the
general rule that probable cause defeats retaliatory
arrest claims. Id.
This exception is categorically unavailable to
Gonzalez because of the nature of her crime and
arrest.
1. Record-tampering is a serious offense that does
not fall within the exception. Contrary to Gonzalez’s
characterizations, she was not arrested for a very
minor offense of “temporarily misplacing a
22
[government] document,” Pet. Br. 3, but rather she
concedes that probable cause supported her arrest for
the offense of intentionally destroying, concealing,
removing or otherwise impairing the availability of a
government record. 3 Pet. App. 26a; Tex. Penal Code.
Ann. 37.10(c)(1) (West 2018). Albeit not murder, this
offense is nothing like the petty, widespread offenses
that rarely result in arrest—like jaywalking at many
intersections, Nieves, 139 S. Ct. at 1727, or drinking
water while commuting on public transit. 4 And when
discovered, record-tampering is enforced, including
against government officials like Gonzalez. E.g.,
Fernandez v. State, 619 S.W.3d 779 (Tex. Ct. App.
2020) (affirming the conviction of a sheriff’s deputy for
falsifying an incident report at the jail); Mills v. State,
941 S.W.2d 204 (Tex. Ct. App. 1996) (affirming the
conviction of a county sheriff who destroyed a jail
commissary ledger).
2. The valid arrest warrant from a magistrate also
bars Gonzalez’s claim. Pet. App. 114a-115a. The
Nieves exception applies only to arrests without a
warrant—to address the expansion of police officers’
discretion since § 1983’s enactment. 139 S. Ct. at 1727.
3 In addition to the elements of the criminal offense for which
Gonzalez was arrested, the facts belie her minimization of her
conduct. Pet. Br. 3, 6, 42. The petition was only missing
“temporarily” because the mayor noticed it was missing, and a
police officer specifically asked Gonzalez if she had it and
watched her find it. J.A. 46-47, 50-51.
4 See Md. Code Ann., Transp. § 7-705(b)(3), (e) (making eating or
drinking on the Metro a misdemeanor); Md. Code Ann., Crim.
Proc. § 2-202 (authorizing warrantless arrests for misdemeanors
committed in the presence of an officer).
23
A magistrate’s independent scrutiny dispels the
concern underlying the Nieves exception that an
officer on the beat relied on probable cause for a petty
offense to cover up her true motive of making an arrest
in retaliation for the suspect’s speech. See id. In
several states, including Gonzalez’s state of Texas, a
magistrate may deny a warrant, even when there is
probable cause. 5 In a majority of states, again
including Texas, the magistrate may choose between
issuing an arrest warrant or a summons, 6 or may be
5 E.g., Tex. Code Crim. Proc. Ann. art. 15.03 (West) (providing
that a magistrate “may,” rather than “shall,” issue a warrant or
summons); Ga. Code § 17-4-40(a) (magistrate “may issue” arrest
warrant); Me. R. Unified Crim. P. 4(c)(2) (similar); N.H. R. Crim.
3(b) (similar).
Tex. Code Crim. Proc. Ann. art. 15.03 (providing that a
“magistrate may issue a warrant of arrest or a summons”); Ala.
R. Crim. P. 3.1 (“If the defendant is not in custody, if the offense
charged is bailable as a matter of right, and if there is no reason
to believe that the defendant will not respond to the summons, a
summons may be issued, at the sole discretion of the issuing
judge or magistrate.”); Ark. R. Crim. P. 6.1 (permitting a judicial
officer to issue a summons for non-violent offenses when the
person is not a flight risk); Colo. R. Crim. P. 9 (except for specified
felonies, preferring a summons over an arrest warrant unless
there is a “significant risk” of flight or to public safety); Conn. R.
Super. Ct. Crim. Sec. 36-4 (allowing judicial authority to issue
summons subject to exceptions primarily addressing safety and
flight risks); Del. Super. Ct. Crim. R. P. 4(a) (“A summons instead
of a warrant may issue in the discretion of the committing
magistrate.”); 725 Ill. Comp. Stat. 5/107-9(c) (allowing court to
issue either); Ind. Code Ann. § 35-33-4-1 (West) (same for
misdemeanors); Iowa Code Ann. § 804.1 (West); (same for “public
offenses”); Kan. Stat. Ann. § 22-2302 (West) (same for
misdemeanors); Minn. R. Crim. P. 19.01 (“[T]he court may issue
a summons instead of a warrant when the prosecutor requests or
the court directs.”); Neb. Rev. Stat. Ann. § 29-425 (allowing for
6
24
required to issue a summons, unless an arrest is
necessary to ensure the defendant’s presence in court
or for public safety or other compelling reasons. 7
issuance of summons “when the court is convinced that a
[summons] would serve all of the purposes of the arrest warrant
procedure”); Okla. Stat. Ann. tit. 22, § 209(C) (West) (permitting
judicial officer to choose between warrant or summons); Or. Rev.
Stat. Ann. §§ 133.110, 133.055 (West) (permitting issuance of
summons—a “criminal citation”—for misdemeanors and some
felonies); Wis. Stat. Ann. § 968.04(1), (2)(b) (West) (leaving it to
judge’s discretion whether to issue summons or warrant for
felonies and more serious misdemeanors); W. Va. R. Crim. P. 4
(“Within the discretion of the magistrate a summons instead of a
warrant may issue.”); W. Va. Mag. Ct. R. Crim. P. 4 (same).
7 Alaska R. Crim. P. 4 (requiring court to issue a summons, not a
warrant, unless “an arrest is necessary to ensure the defendant’s
presence in court” or “because the defendant poses a danger”);
Fla. Stat. Ann. § 901.09 (West) (requiring trial court judge to
issue a summons instead of a warrant for misdemeanors if judge
“reasonably believes” the defendant “will appear upon a
summons”); Idaho Crim. R. 4 (requiring magistrate to “give
preference to the issuance of a summons” instead of a warrant
and providing mandatory factors to guide the decision); Ky. Rev.
Stat. Ann. § 431.410 (West) (requiring issuance of summons,
except for designated offenses, unless there is a flight risk, an
arrest is necessary to prevent “imminent bodily harm” or “other
good and compelling reason as determined by the judicial
officer”); La. Code Crim. Proc. Ann. art. 28 (requiring a summons
unless “imminent and serious harm is threatened”); Mass. Gen.
Laws Ann. ch. 276, § 24 (West) (requiring a summons, not a
warrant, unless “in the judgment of the court or justice, there is
reason to believe that the defendant will not appear”); Mo. Sup.
Ct. R. 21.03 (requiring a summons for misdemeanors unless
“there are reasonable grounds to believe” the defendant will not
appear or poses a danger to others); Mich. Comp. Laws Ann.
§ 764.1a (West) (requiring a summons, not a warrant, unless the
crime is “assaultive” or involves “domestic violence,” the
defendant may not appear or is a public safety risk, or the
25
Limiting the exception to warrantless arrests
avoids reintroducing causal complexity the probablecause bar eliminated. The involvement of an
independent decisionmaker requires a plaintiff to
establish that a defendant with a retaliatory motive
induced a magistrate to reach a decision furthering
the retaliation that the magistrate would not have
made otherwise. See Hartman v. Moore, 547 U.S. 250,
261-63 (2006). Probable cause absolutely bars
retaliatory prosecution claims because of the causal
complexity posed by an independent prosecutor’s
involvement. Id. at 265-66. The same applies here—
probable cause should always bar retaliatory arrests
made under a lawfully executed and valid warrant.
This rule draws a clear line for law enforcement
while bolstering the judicial preference for warrants,
United States v. Watson, 423 U.S. 411, 423 (1976).
Obtaining a valid warrant insulates officers from suit,
encouraging them to slow down and reflect on arrest
decisions when possible. And speech should never
immunize wrongdoers from accountability by
deterring arrests. In Ballentine v. Tucker, the antipolice activists chalking messages, rather than
communicating with signs or other ways that were not
prosecutor asks for a warrant); Ohio Crim. R. 4(A)(1) (requiring
a summons, not a warrant, “upon the request of the prosecuting
attorney, or when issuance of a summons appears reasonably
calculated to ensure the defendant’s appearance.”); Utah R.
Crim. P. 6(c) (requiring a summons unless defendant will not
appear or “there is substantial danger of a breach of the peace,
injury to persons or property, or danger to the community”); Wis.
Stat. Ann. § 968.04(1), (2)(b) (West) (requiring a summons for
certain misdemeanors “unless the judge believes that the
defendant will not appear”).
26
expensive to clean up, were not deterred by a citation.
28 F.4th 54, 59-60 (9th Cir. 2022). But rather than
reacting by arresting them on the spot, the detective
investigated and gave all the evidence, including the
content of the speech—which helped with the
evaluation of First Amendment concerns—to a
magistrate for review and issuance of arrest warrants.
Id. at 62-63. Yet the detective still had to defend his
motives in a civil retaliatory arrest suit. Id. This
cannot be the right result. The Nieves exception
applies only to warrantless arrests.
B. Even if the Nieves exception could apply to
Gonzalez’s arrest under warrant for recordtampering, her evidence would not satisfy it.
Gonzalez’s evidence did not show that she “was
arrested
when
otherwise
similarly
situated
individuals not engaged in the same sort of protected
speech had not been.” Nieves, 139 S. Ct. at 1727.
Nieves mandated this comparison to provide essential
objective evidence linking the purported retaliation to
the arrest—to show that the “non-retaliatory
grounds,” the alleged crime, were “in fact insufficient
to provoke the adverse consequences,” the arrest. Id.
at 1722 (quoting Hartman, 547 U.S. at 256. Only by
identifying similarly situated individuals who were
not arrested does a plaintiff demonstrate that
retaliation caused her arrest. The lack of this evidence
dooms Gonzalez’s claim.
Unlike a person arrested for jaywalking—who
could likely point to many other violators left alone by
police—Gonzalez has pointed to no one else who
intentionally destroyed, removed, or concealed a
government document, yet was not arrested. See Tex.
27
Penal Code. Ann. 37.10(c)(1) (West 2018). Gonzalez’s
evidence of other people who were prosecuted for other
conduct, mostly instances of falsifying government
documents, does not help address whether her arrest
for her conduct was caused by retaliatory animus. See
Pet. App. 117a. Only evidence of others not arrested
for similar conduct could inform this inquiry.
Gonzalez’s evidence may suggest that arrests for
conduct like hers are rare, but that does not suggest
retaliation any more than it suggests that the conduct
itself—or getting caught for it—is rare.
Nothing else that Gonzalez points to is evidence of
differential
treatment
of
similarly
situated
individuals, which is essential to satisfying the Nieves
exception. Plus, the detective’s description of her
protected activities in the arrest affidavit, as discussed
above, was legitimately included to support her
alleged motive for the record tampering, as well as to
allow the magistrate to evaluate any First
Amendment concerns with issuing the arrest warrant.
J.A. 52.
Nieves’s comparative evidence standard is not
impossible for plaintiffs to meet. In Ballentine v.
Tucker, the activists chalking anti-police messages
satisfied it. 28 F.4th 54, 62 (9th Cir. 2022). They
presented evidence that they were arrested while
others who chalked without engaging in anti-police
speech were not—they simply pointed to other
individuals chalking at the same time in the same
location who were not arrested. Id. If a plaintiff’s
arrest is truly based on commonplace conduct that
rarely leads to arrest—the kind of offense that
28
motivated the Court to create the Nieves exception—
such examples should not be hard to come by.
The Court should keep the Nieves exception
narrow. It was carefully crafted to allow claims to
advance for a specific subset of cases where the
existence of probable cause does not sufficiently
explain an arrest, leaving retaliation a likely but-for
cause. So contained, the Nieves exception does not
undermine the useful general probable-cause bar. If
expanded to cover situations like Gonzalez’s—
warrant-supported arrests for serious offenses absent
evidence of comparators who were not arrested—the
exception would swallow the rule.
IV. Other mechanisms and remedies exist to
deter retaliatory arrests or correct abuses of
the arrest power.
Section 1983 claims for damages against
individual state and municipality defendants are not
the only check on the risk that the arrest power will
be used to suppress speech. 8 Even when probable
cause bars the occasional meritorious retaliatory
arrest claim, other remedies, including disciplinary
procedures against individual officers, may correct or
prevent the harm. And states have statutes and court
rules that limit warrantless arrests, curbing officers’
Federal officers in their individual capacity are not subject to
First Amendment claims of retaliatory arrest. Egbert v. Boule,
596 U.S. 482, 498-501 (2022) (declining to imply this
constitutional cause of action under Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971)). For federal officers, the
Court has left it to Congress to create a damages remedy should
that be necessary to curb arrests in retaliation for the exercise of
free speech. Id.
8
29
discretion to make arrests, including for retaliatory
reasons.
A. Litigation. A plaintiff may bring a § 1983 claim
against a municipality for an official policy motivated
by retaliation under Lozman v. City of Riviera Beach,
Fla., 138 S. Ct. 1945 (2018), just like Gonzalez did
here, Pet. App. 73a-78a, 89a-96a; Pet Br. 16 n.3. And
a plaintiff may seek injunctive relief under § 1983
against state officials who act unconstitutionally, even
if damages are unavailable. Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 & n.10 (1989). The United
States points out other criminal and civil remedies,
including the federal government’s enforcement
mechanisms to remedy patterns or practices of
retaliatory arrests, and federal and state prosecutions
of officers who willfully violate individuals’
constitutional rights. U.S. Amicus Br. 13.
B. Disciplinary proceedings. Regardless of the
potential for civil liability, officers who arrest or take
other actions for improper reasons are subject to
disciplinary action. Both internal and external
administrative processes respond to complaints
against officers who violate the law or local policies.
This provides a valuable check against retaliatory
arrests.
Law enforcement agencies receive and resolve
citizen complaints as an important part of their law
enforcement
functions.
Nationwide,
police
departments recognize that holding officers
accountable for their actions is essential to
maintaining the public legitimacy that police need to
be effective. Int’l Ass’n of Chiefs of Police, Building
Trust Between the Police and the Citizens They Serve
30
5-7
(2009),
https://portal.cops.usdoj.gov/resource
center/RIC/Publications/cops-w0724-pub.pdf; see also
Tom R. Tyler & Jeffrey Fagan, Legitimacy and
Cooperation: Why Do People Help Police Fight Crime
in Their Communities?, 6 Ohio St. J. Crim. L. 231,
233-39 (2008) (citing procedural fairness as a source of
police legitimacy, and legitimacy as a major factor in
the success of law enforcement). Citizen complaints
assist a police department not only in identifying
officers who should be monitored more closely,
disciplined, or removed for misconduct, but also by
revealing areas where better training or enhanced
supervision is needed.
Citizen review boards, or other types of external
review, are another mechanism to address citizen
complaints. In cities and counties across the country,
“civilian
oversight
has
been
increasingly
institutionalized as a regular feature of policing,” with
more than 140 civilian oversight agencies, including in
almost all large cities. Joseph De Angelis et
al., Civilian Oversight of Law Enforcement: Assessing
the Evidence 49 (2016), https://tinyurl.com/y94aelhc.
Localities have a wide range of civilian oversight—
from entities with limited authority to review and
make recommendations to boards that have
investigative and subpoena powers—and each
community may tailor its civilian oversight to meet its
needs. Id. at 22-32; The President’s Task Force on 21st
Century Policing Implementation Guide: Moving from
Recommendations to Action 7 (2015), https://
portal.cops.usdoj.gov/resourcecenter/content.ashx/cop
s-p341-pub.pdf.
31
Alaska, for example, has a state certification
council, composed of law enforcement officials and
members of the public, that may revoke a certificate
required for employment as an officer if evidence
demonstrates that the officer is “not of good moral
character,” which could include violating a citizen’s
constitutional rights. Alaska Stat. §§ 18.65.150,
18.65.240, 18.65.242(a), 18.65.245(2); Alaska Admin
Code tit. 13, § 85.900(7); see Alaska Police Standards
Council v. Parcell, 348 P.3d 882 (Alaska 2015)
(affirming council’s decision to revoke certificate of
officer who abused alcohol, made sexually offensive
remarks, and lied during the subsequent
investigation).
Another example is the District of Columbia’s
Office of Police Complaints, which receives and
investigates complaints from citizens. D.C. Code § 51107. The office is independent from the police
department, overseen by a publicly appointed board.
Id. at §§ 5-1104, 5-1105. If the office sustains a
complaint, it refers the matter to the police
department to recommend and the police chief to
decide on discipline. Id. § 5-1112. The police chief
generally may not reject the office’s merits
determination. Id. § 5-1112(e), (g).
C. Limitations on warrantless arrests. To
ensure that the arrest power is used appropriately,
states may also limit officers’ authority to conduct
warrantless arrests. “[I]t is in the interest of the police
to limit petty-offense arrests, which carry costs that
are simply too great to incur without good reason.”
Atwater v. City of Lago Vista, 532 U.S. 318, 352 (2001).
32
States generally preclude arrest without a warrant
for misdemeanors committed outside an officer’s
presence. See Atwater, 532 U.S. at 355-60 (listing
statutes).
Many states have also chosen “more restrictive
safeguards through statutes limiting warrantless
arrest for minor offenses.” Id. at 352. Such safeguards
include providing for release on a citation or summons,
with a requirement to appear later to answer the
charge, in lieu of a full custodial arrest. Nat’l
Conference of State Legislatures, Citation in Lieu of
Arrest (updated March 18, 2019), https://tinyurl.com/
yd9wsf9d. By statute or court rule, all states provide
for citation release for misdemeanor or petty offenses,
and occasionally even felonies. Id. (providing
summary chart of state laws). And twenty-four states
have a presumption of issuing citations—rather than
making an arrest—for certain crimes or under certain
circumstances. Id. For example, an Alaska statute
usually requires officers to issue citations, rather than
arrest, for minor infractions or violations. Alaska Stat.
§ 12.25.180(b). A Virginia statute directs officers to
issue a summons to appear for most misdemeanors
that are not punishable by a jail sentence, rather than
arresting the person. Va. Code § 19.2-74. These and
other similar state statutes typically have exceptions
permitting a custodial arrest when there are
reasonable grounds to believe that the person will not
appear or poses a danger to persons or property, or the
person has outstanding warrants or requires physical
or behavioral health care, such as needing to become
sober. Citation in Lieu of Arrest, supra.
33
***
Thus, § 1983 is not the only answer. Other
processes, including disciplinary proceedings to
investigate complaints of retaliatory arrest, and
limitations on the arrest power make a damages
remedy for retaliatory arrests unnecessary for
deterrence and correction.
CONCLUSION
For the foregoing reasons, the judgment of the
Fifth Circuit should be affirmed.
Respectfully submitted,
TREG TAYLOR
Attorney General of Alaska
KIMBERLY D. RODGERS
Assistant Attorney General
Counsel of Record
ALASKA DEPARTMENT OF LAW
1031 West Fourth Avenue
Anchorage, Alaska 99501
(907) 269-6612
kimber.rodgers@alaska.gov
Counsel for Amici Curiae
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