Petition for Writ of Certiorari — J. T. H., et al., Petitioners v. Spring Cook

No. ______

In The

Supreme Court of the United States

J.T.H.; H.D.H.,

Petitioners,

v.

SPRING COOK,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

ANYA BIDWELL

Counsel of Record

PATRICK JAICOMO

CHRISTEN MASON HEBERT

BETSY SANZ

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

HUGH EASTWOOD

7911 Forsyth Blvd.

Ste. 300

St. Louis, MO 63105

W. BEVIS SCHOCK

7777 Bonhomme Ave.

Ste. 1300

St. Louis, MO 63105

Counsel for Petitioners

i

QUESTION PRESENTED

The circuits have split over whether to allow First

Amendment claims for retaliatory investigations. The

Ninth Circuit allows them. The Fifth Circuit does not.

The Seventh and Tenth Circuits used to allow them.

The Third, Eleventh, and now Eighth Circuits say

that the right to be free from retaliatory investigation

is not clearly established, and thus do not allow them.

This Court’s footnote in Hartman v. Moore, 547

U.S. 250, 262 n.9 (2006), is driving much of the circuit

confusion. At least five circuits, including the Seventh

and Tenth, now believe that the footnote casts doubt

on whether retaliatory investigations can exist as distinct constitutional violations.

The question presented is:

Whether investigations—even when they lack

probable cause—are so categorically different from

other retaliatory acts that they cannot be the basis for

retaliation claims.

ii

PARTIES TO THE PROCEEDING

Petitioners are plaintiffs J.T.H. and H.D.H. Respondent is defendant Spring Cook, Scott County director and circuit manager for the Children’s Division

of Missouri Department of Social Services.

iii

RELATED PROCEEDINGS

U.S. District Court for the Eastern District of Missouri:

J.T.H and H.D.H. v. Missouri Department of Social Services, Children’s Division, et al.,

No. 1:20-CV-222 (June 4, 2021)

U.S. Court of Appeals for the Eighth Circuit:

J.T.H and H.D.H. v. Missouri Department of Social Services, Children’s Division, et al.,

No. 21-2433 (July 1, 2022)

iv

TABLE OF CONTENTS

Page

Petition for a Writ of Certiorari................................. 1

Opinions Below .......................................................... 2

Jurisdiction................................................................. 2

Constitutional and Statutory Provisions Involved ... 3

Statement ................................................................... 3

Reasons for Granting the Petition............................. 8

I. The Court’s decision in Hartman

introduced confusion into the lower

courts’

retaliatory

investigations

jurisprudence ................................................... 9

II. The circuits are split over the question

presented ....................................................... 11

A. The Ninth and Fifth Circuits have

been at loggerheads since before

Hartman ................................................... 11

B. Until Hartman, both the Seventh and

Tenth Circuits recognized a clearly

established right to be free from retaliatory investigations ................................ 14

C. After Hartman, qualified immunity

bars retaliatory investigations in the

Third, Eighth, and Eleventh Circuits ..... 16

III.This case is a good vehicle to resolve the

circuit split ..................................................... 18

IV.The circuit split is on an issue of

exceptional importance ................................. 20

Conclusion ................................................................ 24

v

TABLE OF APPENDICES

APPENDIX A:

Opinion of the United States Court of Appeals for the Eighth Circuit, Filed July 1,

2022 ..................................................................... 1a

APPENDIX B:

Opinion and Order of the United States

District Court for the Eastern District of

Missouri, Filed June 4, 2021 ............................ 10a

APPENDIX C:

Complaint, Filed October 16, 2020 .................. 53a

vi

TABLE OF AUTHORITIES

Page

CASES

Archer v. Chisholm,

870 F.3d 603 (7th Cir. 2017) ............................ 8, 15

Bantam Books v. Sullivan,

372 U.S. 58 (1963) ................................................ 12

Cal. Motor Transp. Co. v. Trucking Unlimited,

404 U.S. 508 (1972) .............................................. 19

Capp v. County of San Diego,

940 F.3d 1046 (9th Cir. 2019) .............................. 13

Colson v. Grohman,

174 F.3d 498 (5th Cir. 1999) ................................ 13

DeMartini v. Town of Gulf Stream,

942 F.3d 1277 (11th Cir. 2019) .............................. 1

Egbert v. Boule,

142 S. Ct. 1793 (2022) .......................................... 22

Garcia v. City of Trenton,

348 F.3d 726 (8th Cir. 2003) ........................ 1, 8, 19

Goff v. Burton,

7 F.3d 734 (8th Cir. 1993) ...................................... 7

Hartman v. Moore,

547 U.S. 250 (2006)…………………………….passim

Houston Cmty. Coll. Sys. v. Wilson,

142 S. Ct. 1253 (2022) ............................................ 1

Johnson v. Collins,

5 Fed. Appx. 479 (7th Cir. 2001) .......................... 14

vii

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ............................................ 8

Lackey v. County of Bernalillo,

166 F.3d 1221 (10th Cir. 1999) .................. 1, 15, 19

Lincoln v. Maketa,

880 F.3d 533 (10th Cir. 2018) .......................... 8, 16

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) .......................................... 19

Mulligan v. Nichols,

835 F.3d 983 (9th Cir. 2016) ................................ 13

Naucke v. City of Park Hills,

284 F.3d 923 (8th Cir. 2002) .............................. 7, 8

Pierce v. Tex. Dep’t. of Criminal Justice,

37 F.3d 1146 (1994) .............................................. 13

Pippin v. Elbert County,

604 Fed. Appx. 636 (2015) .................................... 15

Rehberg v. Paulk,

611 F.3d 828 (11th Cir. 2010) .......................... 8, 16

Sampson v. County of Los Angeles,

974 F.3d 1012 (9th Cir. 2020) ........................ 13, 14

Sivella v. Township of Lyndhurst,

2021 WL 3356934

(3rd Cir. Aug. 3, 2021) .............................. 17, 19, 21

United States v. Catlett,

584 F.2d 864 (8th Cir. 1978) .................................. 8

Villarreal v. City of Laredo,

17 F.4th 532 (5th Cir. 2021) ................................... 8

Villarreal v. City of Laredo,

44 F.4th 363 (5th Cir. 2022) ................................. 14

viii

Wayte v. United States,

470 U.S. 598 (1985) ................................................ 9

White v. Lee,

227 F.3d 1214 (9th Cir. 2000) .................. 12, 18, 20

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. I ........................................ passim

OTHER AUTHORITIES

Catie Edmondson, ‘Rogue’ U.S. Agency Used

Racial Profiling to Investigate Commerce

Dept. Employees, Report Says, N.Y. Times

(July 16, 2021) ....................................................... 23

Dorothy Roberts, Abolish Family Policing, Too,

Dissent (Summer 2021) ......................................... 22

Eli Hager, CPS Workers Search Millions of

Homes a Year. A Mom Who Resisted Paid a

Price, NBC News (Oct. 13, 2022) .......................... 21

Michael German & Emily Hockett, Brennan

Center for Justice, Standards for Opening

an FBI Investigation So Low They Make the

Statistic Meaningless (May 2, 2017) .................. 22

1

PETITION FOR A WRIT OF CERTIORARI

The First Amendment prohibits not only direct

limitations on speech, but also adverse government

actions in response to an individual’s speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). Forms of retaliation are generally “easy to identify,” Houston

Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1260

(2022), particularly when “the governmental defendant * * * utiliz[es] the legal system” to do things like

arrest or prosecute the plaintiff, or even issue parking

tickets, DeMartini v. Town of Gulf Stream, 942 F.3d

1277, 1289 (11th Cir. 2019); see also Wilson, 142 S.

Ct. at 1260 (identifying arrests, prosecutions, and dismissals as among common retaliatory actions); Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.

2003) (same with parking tickets).

There is nonetheless a circuit split on whether retaliatory investigations, unlike other types of retaliatory conduct, can be the basis for suit, especially

when, as in the case below, they lack probable cause.

In the Ninth Circuit, the answer is yes. In the Fifth

Circuit, the answer is no. In the Seventh and Tenth

Circuits, the answer used to be yes, since, just like the

Ninth, those circuits believed that “[a]ny form of official retaliation for exercising one’s freedom of speech,

including prosecution, threatened prosecution, bad

faith investigation, and legal harassment, constitutes

an infringement of that freedom.” Lackey v. County of

Bernalillo, 166 F.3d 1221, at *3 (10th Cir. 1999) (table). In the Third, Eleventh, and now Eighth Circuits,

the answer is that the right to be free from retaliatory

investigations is not clearly established, and thus no.

2

The circuit mess is largely due to a footnote from

this Court’s decision in Hartman, which noted that

nothing in that opinion resolved “[w]hether the expense or other adverse consequences of a retaliatory

investigation would ever justify recognizing * * * an

investigation as a distinct constitutional violation.”

547 U.S. at 262 n.9. Some lower courts have seized on

that language as evidence of uncertainty in the law,

which means qualified immunity bars any claim for

retaliatory investigation. Others disagree and continue to recognize investigation alongside other retaliation claims.

This Court must grant review in order to fix this

circuit split and alleviate the confusion among the circuits that developed after Hartman.

OPINIONS BELOW

The opinion of the circuit court, Pet. App. 1a, is reported as J.T.H & H.D.H. v. Missouri Department of

Social Services, Children’s Division, et al., 39 F.4th

489 (8th Cir. 2022). The opinion of the district court,

Pet. App.10a, is not reported but is available electronically as J.T.H & H.D.H. v. Missouri Department of

Social Services, Children’s Division, et al., 2021 WL

2291133 (E.D. Mo. June 4, 2021).

JURISDICTION

The Eighth Circuit entered its decision below on

July 1, 2022. Justice Kavanaugh granted a 60-day extension of the period for filing this petition on August

15, 2022. Petitioners timely file this petition and invoke this Court’s jurisdiction under 28 U.S.C. 1254(1).

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution prohibits any law “abridging the freedom of

speech, or of the press.”

*

*

*

Section 1983 of Title 42 of the United States Code

provides:

Every person who, under color of [law] of any

State * * * subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action

at law[.]

STATEMENT

1. In May 2018, a 15-year-old boy was sexually assaulted by Brandon Cook, a deputy in the Scott

County, Missouri, Sherriff’s Department. 1 Pet. App.

2a. A few months after the assault, the boy’s parents,

petitioners, threatened to sue Brandon Cook’s employer, Scott County, for its role in the assault. Id. at

3a; 58a. The father was also employed by Scott

County as a sheriff’s deputy. Id. at 2a; id. at 55a.

Only weeks after that threat, the parents found

themselves the subject of an intrusive investigation

1 Facts are taken from the complaint, Pet. App. 53a–94a; the

trial court opinion, Pet. App. 10a–52a; and the Eighth Circuit

opinion, Pet. App. 1a–9a.

4

for child neglect by a child-welfare investigator in

Scott County, respondent Spring Cook. Id. at 2a.

The parents first discovered they were under investigation when Cook arrived, unannounced, at the

parents’ home on November 7, 2018, accompanied by

a juvenile officer and state highway patrol troopers.

Id. at 58a. Cook interviewed their abused son, and, at

her insistence, that evening the boy was interviewed

at the facility of a nonprofit organization that works

with the county to respond to incidents of sexual

abuse. Id. at 59a. Cook came to the family home again

on November 9, 10, and 13 to conduct more interviews

with the boy and his siblings. Id. at 59a.

Cook’s investigation was highly traumatic for the

family. At one point, the boy was referred for an inspection of his genitals and rectum for evidence; his

cellphone was taken; and he was told that he could be

charged with a sex crime. Id. at 59a; 61a. Cook also

threatened the father with a revocation of his peaceofficer license. Id. at 2a.

Once they were represented by counsel, the parents refused Cook further home visits and unsuccessfully asked her to recuse herself, given Cook’s close

employment relationship with Brandon Cook and

given that the father also worked for the same sheriff’s department. Id. at 2a; 60a.

2. In January 2019, Cook issued a preliminary

finding of child neglect against the parents because:

(1) Brandon Cook had sexually assaulted their son; (2)

a martial-arts instructor had engaged in a sexual relationship with the boy until the parents discovered

Facebook messages between the two and confronted

the instructor; and (3) the boy, with the consent of the

5

parents, went on an age-appropriate date with another teenage boy at a shopping mall. Id. at 61a–63a.

In essence, Cook found the parents guilty of neglect

because they permitted their child to have access to a

cellphone, the internet, and a car. Id. at 44a; 63a. If

the finding had become final, the parents would have

been placed on Missouri’s Child Abuse and Neglect

Registry, which would have made it impossible for

them to obtain future employment. Id. at 3a; 67a.

By contrast, neither the deputy juvenile officer nor

the highway patrol troopers—all present during the

original home visit—ever found probable cause of parental neglect. Id. at 66a. The juvenile officer conducted an independent investigation and made an independent written determination of “no evidence.”

Ibid. In addition, when the parents finally got the

state Child Abuse and Neglect Review Board to review Cook’s findings, which she herself had made final by reviewing them, 2 these findings were summarily reversed. Id. at 3a. The board concluded that

Cook’s findings of “neglect were unsubstantiated.”

Ibid.; 71a–72a; 74a. After all this, the FBI, too—based

on an anonymous tip with nearly identical language

to the one used by Cook in her preliminary findings—

looked into the allegations of the parents’ child abuse,

again finding no probable cause for continuing its investigation. Id. at 76a.

2 To challenge a preliminary finding of neglect, parents must

request a formal administrative review. Pet. App. 3a. The first

step of the review is performed at a circuit level, with a circuit

manager deciding whether to make the findings final. Ibid. Because Cook, in addition to being a child-welfare investigator, was

also the circuit manager, she reviewed her owns findings, despite the parents’ request that she recuse herself. Ibid; id. at 43a.

6

3. Once they cleared their names, the parents sued

Cook for investigating them to chill their speech. 3 In

their complaint, the parents alleged every element of

a retaliatory investigation claim, including a lack of

probable cause for Cook’s investigation. Id. at 81a–

84a. The district court held that the parents had

stated a plausible claim of retaliation, citing the following facts to support that holding:

•

Cook opened her investigation just seven

weeks after the parents made allegations

against Scott County;

•

Cook shared a last name and social media

friendship with Brandon Cook;

•

Cook twice refused to recuse herself, despite a

custom and practice of doing so under such circumstances;

•

Cook threatened the father with “getting” his

professional license;

•

Unlike Cook, the juvenile officer found “no evidence” to support a finding of parental neglect;

•

Unlike Cook, the highway patrol found no probable cause to charge the parents with neglect;

•

Cook’s findings were overturned by the administrative board;

3 The parents’ complaint contained additional claims and de-

fendants. They are not relevant to the question presented here,

which deals solely with the Eighth Circuit’s holding that Cook’s

investigatory actions in retaliation for the parents’ speech are

shielded by qualified immunity. All of the other claims and defendants were dismissed, Pet. App. 52a, and the parents are not

challenging that, making this case a clean vehicle. See also Part

III, infra, at 18–20.

7

•

Cook contacted the FBI after the administrative board’s decision; and

•

Unlike Cook, the FBI found no probable cause

and closed its investigation.

Id. at 43a–44a.

Moreover, the district court denied Cook qualified

immunity. 4 First, according to the court, the parents

“have plausibly alleged a First Amendment retaliation claim,” id. at 44a, 47a, including that by threatening to file a lawsuit against the government, “they

engaged in a constitutionally protected activity,” id.

at 41a; that “Cook’s preliminary finding of parental

neglect was sufficiently adverse to chill a person of ordinary firmness,” id. at 42a; that the parents “have

plausibly alleged the required causal connection between their protected activity and Cook’s decision to

investigate and make a preliminary finding of child

neglect,” id. at 43a; and that the parents “sufficiently

alleged lack of probable cause,” id. at 44a.

Second, the court concluded that this unconstitutional retaliation was clearly established: “The question * * * is whether a reasonable official might have

believed that it was permissible to make findings of

child neglect in retaliation for parents making claims

against county officials related to the sexual abuse of

their child. Under clear Eighth Circuit precedent, the

answer is no.” Id. at 49a (citing Goff v. Burton, 7 F.3d

734, 736 (8th Cir. 1993); Naucke v. City of Park Hills,

4 Cook also invoked absolute immunity for her investigatory

actions, which was denied by both the district court and the court

of appeals. Pet. App. 46a; id. at 5a–6a; but see Pet. App. 9a (absolute immunity granted for actions during the administrative

review process) (unchallenged by the parents in this petition).

8

284 F.3d, 923, 927–928 (8th Cir. 2002); United States

v. Catlett, 584 F.2d 864, 867 (8th Cir. 1978); Garcia v.

City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003)).

4. Cook appealed the qualified immunity determination to the Eighth Circuit, which reversed because

“the complaint falls short of establishing that Cook violated a clearly established right.” Id. at 7a. In the

court’s view, “[e]ven assuming that the facts in the

complaint are true,” the constitutional question is not

“beyond debate.” Ibid. (citing Kisela v. Hughes, 138 S.

Ct. 1148, 1152 (2018)). “After all, we have never recognized a retaliatory-investigation claim of this kind.”

Ibid. Neglecting to mention the Ninth Circuit, which

treats retaliatory investigations as actionable, the

court stated that “other courts around the country * *

* have either rejected the possibility outright or concluded, like we do today, that the law is still in flux.”

Ibid. (citing Villarreal v. City of Laredo, 17 F.4th 532,

542 n.1 (5th Cir. 2021); Lincoln v. Maketa, 880 F.3d

533, 540 (10th Cir. 2018); Archer v. Chisholm, 870

F.3d 603, 620 (7th Cir. 2017); Rehberg v. Paulk, 611

F.3d 828, 850–851 (11th Cir. 2010)).

Lincoln, Archer, and Rehberg all cite Hartman as

the reason they now doubt the viability of retaliatory

investigation claims. See Lincoln, 880 F.3d at 540;

Archer, 870 F.3d at 620; Rehberg, 611 F.3d at 850.

REASONS FOR GRANTING THE PETITION

This Court’s decision in Hartman did not provide

a blanket excuse to dismiss retaliatory investigation

claims. Yet, the court below and the Third and Eleventh Circuits now look to Hartman as a pretext to do

just that. In two additional circuits, the Seventh and

9

Tenth, the right to be free from retaliatory investigations—which existed prior to Hartman—is now in

doubt. Only two circuits have been left unaffected by

Hartman, and even they are split over the issue. In

the Fifth Circuit, there is a blanket rule against recognizing retaliatory investigation claims, while in the

Ninth Circuit, retaliatory investigations are not

treated any differently than other forms of retaliation. Because Hartman has exacerbated a circuit split

over the protections afforded by the First Amendment, it is important for this Court to weigh in: Is all

retaliation prohibited, or are retaliatory investigations unworthy of constitutional scrutiny?

I.

The Court’s decision in Hartman introduced confusion into the lower courts’ retaliatory investigations jurisprudence.

Hartman was an important decision because it

clarified the standard for pleading and proving retaliatory animus in retaliatory prosecutions cases. Before Hartman, this Court did not require plaintiffs to

show the lack of probable cause in order to establish

a retaliatory prosecution claim. Wayte v. United

States, 470 U.S. 598, 610–611 (1985). Since Hartman,

plaintiffs must overcome this no-probable-cause burden. Hartman, 547 U.S. at 265–266.

In addition to making this much needed clarification to the retaliatory prosecutions jurisprudence,

however, Hartman also—seemingly by accident—unsettled decades of retaliatory investigations jurisprudence, causing lower courts to reassess whether the

precise nature of the retaliation at issue is dispositive

for the purposes of qualified immunity.

10

Hartman concerned claims against criminal investigators “for inducing prosecution in retaliation for

speech.” 547 U.S. at 252. The plaintiff, the chief executive of a firm that developed multiline scanning technology for sorting mail, argued that postal service inspectors induced an assistant U.S. attorney to prosecute him because he testified in support of the technology they opposed and because he publicly criticized

the postal service. Id. at 254. The inspectors, for their

part, argued that, since the underlying criminal

charges were supported by probable cause, they were

shielded by qualified immunity. Id. at 255.

This Court agreed, using the causal complexities

presented in retaliatory prosecution cases as a justification for its decision. In “ordinary retaliation claims

* * * the government agent allegedly harboring the

animus is also the individual allegedly taking the adverse action,” the Court reasoned, but in retaliatory

prosecution claims a retaliation action “will not be

brought against the prosecutor, who is absolutely immune.” Instead, “the defendant will be * * * an official

* * * who may have influenced the prosecutorial decision but did not himself make it.” Id. at 261–262. In

such cases, a showing of subjective animus is not

enough, and plaintiffs must plead and prove a lack of

probable cause.

Importantly, by modifying the standard of proof in

retaliatory prosecution cases, the Court did not announce a new right to be free from retaliatory prosecution: “the law is settled that as a general matter the

First Amendment prohibits government officials from

subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Id. at

256. Even actions “unexceptionable if taken on other

11

grounds” can be retaliatory if these grounds “are in

fact insufficient to provoke the adverse consequences.” Ibid.

And neither did the Court meaningfully weigh in

on whether retaliatory investigations are actionable.

It is true that in one footnote the Court stated that

“[w]hether the expense or other adverse consequences

of a retaliatory investigation would ever justify recognizing such an investigation as a distinct constitutional violation is not before us.” Id. at 262 n.9. But it

also acknowledged that “[a]n action could still be

brought against a prosecutor for conduct taken in an

investigatory capacity,” presumably the very same

conduct—retaliatory investigations—that the Court

just said were not before it. Id. at 262 n.8.

In the end, the footnote created more problems

than it solved, significantly affecting the ability of

plaintiffs to overcome qualified immunity in retaliatory investigation cases. Only this Court can put to

rest the confusion it created.

II.

The circuits are split over the question

presented.

A. The Ninth and Fifth Circuits have been

at loggerheads since before Hartman.

The Ninth and Fifth Circuits disagree on whether

investigation can be the basis for a First Amendment

retaliation suit.

In the Ninth Circuit, investigations are not different from other forms of retaliation. Reasonable officers are fairly warned, therefore, that using investigations or any other means to punish speakers runs

12

afoul of “bedrock First Amendment principles and legal rules that this court and the Supreme Court have

applied for decades, if not centuries.” White v. Lee, 227

F.3d 1214, 1239 (9th Cir. 2000).

In White, a San Francisco office of the U.S. Department of Housing and Urban Development (HUD)

launched an eight-month investigation into three

Berkley neighbors who opposed the conversion of a

motel into low-income housing by filing a lawsuit

against the housing developer in state court. Id. at

1221. Just like in the case below, the investigation

was intrusive and involved HUD officials questioning

the neighbors and directing them to produce various

information and documents, ultimately recommending “finding that the neighbors had violated the Fair

Housing Act.” Id. at 1220. And just like in the case

below, an overseeing body “ultimately concluded that

no violation had occurred.” Ibid.

But unlike the case below, the Ninth Circuit recognized the neighbors’ retaliation claim because “in

the First Amendment context, courts must ‘look

through forms to the substance’ of government conduct.” Id. at 1228 (citing Bantam Books v. Sullivan,

372 U.S. 58, 67 (1963)). Even if the investigation did

not result in “criminal or civil sanctions,” the retaliation claim was still actionable, since “[i]nformal

measures, such as ‘the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,’ can violate the First Amendment also.”

Id. at 1228. That was true even if officials “were required by the Fair Housing Act to investigate whether

the neighbors had filed a lawsuit in state court with

an unlawful discriminative motive.” Id. at 1220; see

also id. at 1231. As a result, defendants were not

13

entitled to qualified immunity, even though plaintiffs

could not point to a prior case on point discussing

whether investigations can constitute an actionable

First Amendment claim. Id. at 1239.

This approach is irreconcilable with the one

adopted by the Fifth Circuit, which has a per se rule

that investigations do not “ris[e] to the level of actionable retaliation.” Colson v. Grohman, 174 F.3d 498,

508 (5th Cir. 1999). Even if such investigations “may

have * * * the effect of chilling * * * protected speech,”

when an investigation does not result in “any action

being taken,” it does not violate the First Amendment.

Id. at 511. Thus, in Colson, the plaintiff who opposed

a chief of police’s proposed budget and was investigated as a result of it, could not sue for retaliation because the investigation resulted in neither an arrest

nor an indictment. Similarly, in Pierce v. Texas Department of Criminal Justice, 37 F.3d 1146 (1994), the

plaintiff could not sue for twice being investigated,

since “[n]either investigation resulted in any action

being taken against [her].” Id. at 1150.

This Court’s decision in Hartman did not alter the

disagreement between the Ninth and Fifth Circuits.

The Ninth Circuit, to this day, continues to hold that

“[i]nformal measures, such as ‘the threat of invoking

legal sanctions and other means of coercion, persuasion, and intimidation’ can violate the First Amendment also.” Mulligan v. Nichols, 835 F.3d 983, 989 n.5

(9th Cir. 2016); see also Capp v. County of San Diego,

940 F.3d 1046, 1059 (9th Cir. 2019) (taking the serious step of threatening to terminate a parent’s custody of his children, when the official would not have

taken this step absent her retaliatory intent, violates

the First Amendment); Sampson v. County of Los

14

Angeles, 974 F.3d 1012, 1020–1021 (9th Cir. 2020)

(same, only with regard to a court-appointed guardian). The Fifth Circuit, on the other hand, continues

to “not recognize such a claim.” Villarreal v. City of

Laredo, 44 F.4th 363, 374 n.1 (5th Cir. 2022), vacated

for rehearing on other grounds, 52 F.4th 265 (5th Cir.

2022) (stating that a journalist cannot sue for an investigation launched in retaliation for her reporting).

B. Until Hartman, both the Seventh and

Tenth Circuits recognized a clearly established right to be free from retaliatory investigations.

Prior to this Court’s dicta in Hartman, the Seventh

and Tenth Circuits both recognized that investigations are just another form of punishment for protected speech and are therefore actionable under the

First Amendment.

In Johnson v. Collins, for example, the Seventh

Circuit held that qualified immunity did not prevent

a father from suing two CPS caseworkers for investigating him in retaliation for a complaint he filed

against them. 5 Fed. Appx. 479, 482–483, 485 (7th

Cir. 2001). Just like in the case below, the investigations included multiple visits to the father’s residence,

threats to “play hard ball,” and requests to complete

a counseling program. Id. at 483. Just like in the case

below, the defendants argued that they were entitled

to qualified immunity. But unlike the case below, the

Seventh Circuit ruled against the defendants, recognizing a First Amendment claim for investigations

conducted in retaliation for protected speech. Id. at

485–486. “Because there is no justification for harassing people for exercising their constitutional rights,

15

the injury alleged * * * need not be great in order to

be actionable.” Id. at 486.

Similarly, pre-Hartman, the Tenth Circuit held

that “[a]ny form of official retaliation for exercising

one’s freedom of speech, including prosecution,

threatened prosecution, bad faith investigation, and

legal harassment, constitutes an infringement on that

freedom.” Lackey, 166 F.3d 1221, at *1. In Lackey, the

Tenth Circuit looked at whether qualified immunity

was available to a task-force officer who caused the

plaintiff to be investigated by the Albuquerque police.

Ibid. The plaintiff created problems for the task-force

officer’s informant by “alerting families with small

children” that the informant was a convicted child

molester. Ibid. The investigation included two officers

visiting the plaintiff at his home under the false pretense that they were “investigating a report of a laser

sight being aimed in the area.” Id. at *2. The officers

asked the plaintiff if he had guns in addition to those

they saw in plain view and then left without taking

any actions. Ibid. While the court did grant qualified

immunity to the task-force officer because the plaintiff “cannot demonstrate [the officer’s] actions were

motivated by an unconstitutional animus,” id. at *4,

it nonetheless “establish[ed] the cardinal principle

that public officials may not retaliate against citizens”

whether or not this retaliation takes the form of an

investigation, Pippin v. Elbert County, 604 Fed. Appx.

636, 637 (2015) (discussing Lackey).

After Hartman, both holdings were thrown into

doubt. In 2017, for example, the Seventh Circuit reasoned that despite its prior precedent, which was

“long in the tooth,” Archer, 870 F.3d at 620, the right

to be free from retaliatory investigations was not

16

clearly established, especially given “the Supreme

Court’s observation in Hartman v. Moore,” id. at 620

(quoting Hartman, 547 U.S. at 262 n.9). Similarly, in

2018, the Tenth Circuit stated that “[o]ur court has

not settled” this question, noting that “[t]he Supreme

Court has declined to consider whether a retaliatory

criminal investigation entails a constitutional violation.” Lincoln, 880 F.3d at 540 (citing Hartman).

C. After Hartman, qualified immunity

bars retaliatory investigations in the

Third, Eighth, and Eleventh Circuits.

The Third, Eighth, and Eleventh Circuits differ

from the Fifth in that they don’t have a per se rule

that investigations can never amount to a First

Amendment retaliation. Instead, they rely on the

clearly established prong of qualified immunity to get

rid of such cases. The footnote in Hartman drives

much of this analysis, since, according to these courts,

it means that only cases involving investigations can

provide fair warning that retaliatory investigations

are unconstitutional. This conclusion amounts to a

functionally identical result to the per se rule in the

Fifth Circuit: investigation, even when it is not supported by probable cause, cannot be the basis for suit.

In the Eleventh Circuit, for example, a critic of a

hospital sued county officials who investigated him as

a punishment for his speech and “as a favor to the

hospital.” Rehberg, 611 F.3d at 840. The court granted

qualified immunity to the officials not because they

hadn’t violated the First Amendment, but because the

critic’s “right to be free from a retaliatory investigation is not clearly established.” Id. at 850–851. Pointing to Hartman, the court stated that “[t]he Supreme

17

Court has never defined retaliatory investigation,

standing alone, as a constitutional tort.” Id. at 851.

Similarly, the Third Circuit gave qualified immunity to a mayor who caused an investigation into the

propriety of a municipal job held by the plaintiff, in

retaliation for the plaintiff’s cooperation with a HUD

investigation. Sivella v. Township of Lyndhurst, 2021

WL 3356934, at *1 (3rd Cir. Aug. 3, 2021). According

to the court, the mayor was “entitled to qualified immunity because, at the time he requested the initiation of an investigation into no-show municipal jobs

in 2013, it was not clearly established that * * * such

an adverse action amounted to a First Amendment violation.” Id. at *2. Again, the court did not hold that

the mayor hadn’t violated the First Amendment—just

that it was not clearly established. “Since Hartman,

no Supreme Court case has addressed the issue of

whether the initiation of a retaliatory investigation

can constitute a First Amendment violation.” Id. at

*3. “[A]n absence of relevant Supreme Court precedent strongly supports a finding that a particular

right is not clearly established.” Ibid.

Finally, in the case below, the Eighth Circuit followed the Third and Eleventh Circuits in stating that

“we have never recognized a retaliatory-investigation

claim of this kind.” Pet. App. 7a. It is true that “as a

general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions on the basis of constitutionally protected speech.” Id. at 8a (cleaned up). But “the law is

not clearly established enough to cover the specific

context of the case: retaliatory investigation.” Ibid.

(cleaned up). Again, no constitutional advancement,

only stagnation under the clearly established test.

18

This conclusion is radically different from the one

in the Ninth Circuit, where, in White v. Lee, the court

stated that due to the “bedrock First Amendment

principles and legal rules that this court and the Supreme Court have applied for decades, if not centuries

* * * reasonable government officials would have

known that they could not conduct an eight-month investigation” into residents who sued to stop the housing development from going forward. 227 F.3d at

1239; see also Part IIA, supra, at 11–14. Had the case

below been brought in the Ninth Circuit—or in the

Seventh or Tenth Circuits before Hartman was decided—it would have never been thrown out simply

because it involves a claim for a retaliatory investigation. Given this disagreement between the circuits

and the confusion created by Hartman, this Court’s

intervention is not only justified but badly needed.

III.

This case is a good vehicle to resolve the

circuit split.

If this Court resolves the circuit split in favor of

the Ninth Circuit’s holding that it is the substance

and not the form of retaliation that drives the qualified immunity analysis, then the parents in this case

would be able to proceed with their claim, which is

still at the motion to dismiss stage.

First, in their complaint, the parents sufficiently

showed that: (1) they engaged in protected speech by

making allegations against the government with an

intent to sue; 5 (2) as a consequence of this activity,

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

508, 510 (1972) (“[T]he right of access to the courts is indeed but

one aspect of the right of petition.”); Lozman v. City of Riviera

19

they were subject to an intrusive retaliatory action—

investigation—that adversely affected that protected

speech; (3) Cook’s retaliatory animus was the but-for

cause of this investigation; (4) the investigation was

not supported by probable cause; and (5) as a result of

the investigation, the parents (and their family) suffered a significant injury. Pet. App. 39a; 81a–84a.

In addition, there was already precedent in the

Eighth Circuit providing fair warning to every reasonable official that punishing someone for petitioning their government, even in a minor way, is a violation of the First Amendment. See, e.g., Garcia v. City

of Trenton, 348 F.3d 726, 729 (8th Cir. 2003) (holding

that the mayor could not “engage[] the punitive machinery of government in order to punish Ms. Garcia

for her speaking out,” even if this punishment was a

retaliatory issuance of parking tickets made out for

genuine violations of a time limit).

To the extent that probable cause could have made

the claim more complicated, 6 it did not do so here

Beach, 138 S. Ct. 1945, 1954 (2018) (“This Court has recognized

the right to petition as one of the most precious of the liberties

safeguarded by the Bill of Rights.” (cleaned up)).

6 Importantly, unlike Hartman or some of the cases in the

circuit split, see, e.g., Lackey, 166 F.3d 1221, at *3, and Sivella,

2021 WL 3356934, at *1, this is not an inducement case. As a

result, the need for a no-probable-cause showing is not as important, though the parents still satisfied it. Here, the parents

are not suing the county for inducing Cook to investigate. Instead, they are suing Cook for the acts she herself committed. In

that sense, it is an “ordinary retaliation claim[],” where “the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action,” and causal complexities that drove the Court to require a no-probable-cause showing

are not present. Hartman, 547 U.S. at 259, 261–262.

20

because the parents sufficiently pled the lack of probable cause. Pet. App. 43a–44a (the district court ruling that the parents sufficiently alleged the lack of

probable cause); see also Pet. App. 83a (the parents

stating in their complaint that no probable cause existed for Cook’s investigation and pointing to (1) the

juvenile officer’s determination that “no evidence”

supported a finding of parental neglect; (2) the highway patrol’s finding of no probable cause to charge the

parents with neglect; and (3) the FBI’s finding of no

probable cause).

But the court below did not grapple with all that,

choosing instead to rely on the post-Hartman view

that the precise nature of retaliation is dispositive for

the purposes of qualified immunity. This is the opposite of the approach taken by the Ninth Circuit,

which, instead of isolating precise facts of a First

Amendment case, looks to the “bedrock First Amendment principles” and evaluates them against the substance of the alleged retaliatory conduct. White, 227

F.3d at 1239. Because the Ninth Circuit would have

allowed the parents’ claim to move forward, a reversal

in this case would be outcome determinative, making

this case a good vehicle for resolving the circuit split.

IV.

The circuit split is on an issue of exceptional importance.

The court below, as well as the Third, Fifth, and

Eleventh Circuits, treats investigations as categorically different from other forms of First Amendment

retaliation, effectively rejecting them as the basis for

suit. As a result, in sixteen states across this nation,

and potentially even more, see Part IIB, supra, at 14–

21

16, there is no accountability for silencing people by

investigating them.

This situation is not likely to get any better until

this Court weighs in on the issue and resolves the confusion it introduced in Hartman. Without the Court’s

intervention, Hartman seems to have frozen the law

in this area. That is, before Hartman, there was a

split on this substantive constitutional question, and

after Harman, at least five courts have invoked qualified immunity and refused to engage with the constiutional question, causing the circuit split to ossify.

See Parts IIB and IIC, supra, at 14–18. At least one

court has said it’s waiting for this Court’s final word

on the question before deciding anything further. See

Part IIC, supra, at 17, discussing the Third Circuit’s

decision in Sivella v. Township of Lyndhurst.

In the meantime, investigations continue to be a

very convenient and effective form of retaliation.

Whether in the shape of a tax audit, a civil code investigation, or invasive regulatory inspections, they are

easy to launch and can wreak havoc with people’s

lives and businesses. With CPS specifically, caseworkers “investigate the home lives of roughly 3.5

million children every year.” Eli Hager, CPS Workers

Search Millions of Homes a Year. A Mom Who Resisted Paid a Price, NBC News (Oct. 13, 2022) (citing

statistics from the Department of Health and Human

Services). Only “about 5% of them are ultimately

found to have been physically or sexually abused.”

Ibid. Yet “[d]uring CPS investigations, caseworkers

may inspect every corner of the home, interrogate

family members about intimate details of their lives,

strip-search children to look for evidence, and collect

confidential information from schools, healthcare

22

providers, and social service programs.” Dorothy Roberts, Abolish Family Policing, Too, Dissent (Summer

2021). In many cases, investigations alone are enough

to destroy lives and reputations, which may never recover, regardless of the outcome of the investigation.

Indeed, the parents brought this lawsuit because of

the harm this unfounded investigation caused.

Investigation is an effective tool for intimidation

outside the context of child protective services as well.

For example, FBI investigators 7 can easily open a special type of an investigation called an assessment.

“Assessments permit physical surveillance, database

searches, interviews, racial and ethnic mapping” all

“without any factual or criminal predicate” or probable cause. Michael German & Emily Hockett, Brennan Center for Justice, Standards for Opening an FBI

Investigation So Low They Make the Statistic Meaningless (May 2, 2017). Between 2009 and 2011, for example, the FBI opened 82,325 assessments, only

3,315 of which had enough evidence to warrant an actual investigation. Ibid. Some of these were opened on

political advocacy organizations based on nothing

more than the agents themselves speculating about

subjects potentially committing a crime. Ibid. Similarly, officials at the Commerce Department had an

unfiltered investigative power that resulted in a systematic targeting and harassment of Chinese-Americans

through

“thousands

of

unauthorized

Federal investigations are even more out of reach than

state or local investigations. See Egbert v. Boule, 142 S. Ct. 1793,

1807 (2022) (holding that “there is no Bivens action for First

Amendment retaliation”). Federal data are nonetheless very telling: It is incredibly easy to weaponize the investigative power of

the government.

7

23

investigations into department employees, often for

specious reasons.” Catie Edmondson, ‘Rogue’ U.S.

Agency Used Racial Profiling to Investigate Commerce

Dept. Employees, Report Says, N.Y. Times (July 16,

2021) (citing a report issued by U.S. Senate Committee on Commerce, Science, & Transportation).

The First Amendment is not worth much if people

in power can weaponize government investigations to

punish those whose speech they don’t like. If speaking

could result in an invasive or embarrassing investigation, speakers will simply stay silent. That is anathema to the purpose of the First Amendment. Every

reasonable official should know that launching a

baseless investigation in order to silence citizens is

unconstitutional. By categorically excluding investigations from the First Amendment scrutiny, the court

below utilized a dangerous mechanism to override

First Amendment protections. This Court should

grant certiorari and reverse. 8

-------------------------------- ♦ ---------------------------------

8 Petitioners’ counsel, the Institute for Justice, also repre-

sents Anthony Novak in his recently filed petition for certiorari

in Novak v. City of Parma, No. 22-293 (Sept. 26, 2022), on a similar issue involving retaliatory arrests.

24

CONCLUSION

The Court should grant this petition.

Respectfully submitted,

ANYA BIDWELL

Counsel of Record

PATRICK JAICOMO

CHRISTEN MASON HEBERT

BETSY SANZ

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

NOVEMBER 28, 2022

HUGH EASTWOOD

7911 Forsyth Blvd.

Ste. 300

St. Louis, MO 63105

W. BEVIS SCHOCK

7777 Bonhomme Ave.

Ste. 1300

St. Louis, MO 63105