Amicus Curiae Brief — Kyler Newby, Petitioner v. Gabriel J. Bassford

NO. 25-981

In the

Supreme Court of the United States

KYLER NEWBY,

Petitioner,

v.

GABRIEL J. BASSFORD,

Respondent.

__________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL SHERIFFS’ ASSOCIATION

IN SUPPORT OF PETITIONER

Gregory C. Champagne

Counsel of Record

Maurice E. Bostick

ST. CHARLES PARISH SHERIFF’S OFFICE

260 Judge Edward Dufresne Parkway

Luling, LA 70070

(985) 783-2883

sheriffgc@stcharlessheriff.org

March 10, 2026

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

IDENTITY AND INTEREST OF THE AMICUS

CURIAE ................................................................ 1

SUMMARY OF ARGUMENT .................................... 2

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

I.

Qualified Immunity is Critical to Law

Enforcement ..................................................... 3

II. The Law of This Case Is Not Clearly

Established So as to Deny Qualified

Immunity .......................................................... 5

III. This Court has Repeatedly Instructed

the Ninth Circuit Not to Define “Clearly

Established” at Too High a Level of

Generality ....................................................... 13

IV. Here, Plaintiff Failed to Meet His Burden

of Proof of a Retaliatory Motive ..................... 17

V. Further, Plaintiff Failed to Meet His

Threshold Burden to Prove No Probable

Cause for Arrest ............................................. 19

CONCLUSION.......................................................... 21

ii

TABLE OF AUTHORITIES

CASES

TABLE OF AUTHORITIES

Page

Ashcroft v. al-Kidd,

563 U.S. 731, 131 S. Ct. 2074,

179 L. Ed. 2d 1149 (2011) ................................. 13

City & Cnty. of San Francisco v. Sheehan,

575 U.S. 600, 135 S. Ct. 1765,

191 L. Ed. 2d 856 (May 18, 2015) ..................... 13

City of Escondido v. Emmons,

586 U.S. 38, 139 S. Ct. 500,

202 L. Ed. 2d 455 (January 7, 2019)........... 14, 16

City of Houston, Tex. v. Hill,

482 U.S. 451, 107 S. Ct. 2502,

96 L. Ed. 2d 398 (1987) ....................................... 7

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288, 104 S. Ct. 3065,

82 L. Ed. 2d 221 (1984) ..................................... 10

Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788, 105 S. Ct. 3439, 87 L.

Ed. 2d 567 (1985) ................................................. 8

District of Columbia v. Wesby,

583 U.S. (2018) .................................................. 16

Frisby v. Schultz,

487 U.S. 474, 108 S. Ct. 2495,

101 L. Ed. 2d 420 (1988) ..................................... 8

Gonzales v. Trevino,

602 U.S. 653 (2024) ........................................... 20

Heffron v. Int’l Soc. for Krishna Consciousness,

Inc., 452 U.S. 640 (1981) ..................................... 8

iii

TABLE OF AUTHORITIES (Cont.)

Page

Jacobson v. United States Dep’t of Homeland

Sec., 882 F.3d 878 (9th Cir. 2018)..................... 10

Kisela v. Hughes,

584 U.S. 100, 138 S.Ct. 1148,

200 L.Ed.2d 449 (2018) ..................................... 14

McCullen v. Coakley,

573 U.S. 464, 134 S. Ct. 2518,

189 L. Ed. 2d 502 (2014) ................................... 11

Nieves v. Bartlett,

587 U.S. 391, 139 S. Ct. 1715,

204 L. Ed. 2d 1 (May 28, 2019) .................... 17-20

One World One Fam. Now v. City & Cnty. of

Honolulu, 76 F.3d 1009 (9th Cir. 1996) ............ 10

Rivas-Villegas v. Cortesluna,

595 U.S. 1, 142 S. Ct. 4,

211 L. Ed. 2d 164 (October 18, 2021).......... 16, 17

Solomon v. Las Vegas Metro Police Dept.,

No. 23-4166 (9th Cir. 2025) ............................ 6-12

United States v. Grace,

461 U.S. 171, 103 S. Ct. 1702,

75 L. Ed. 2d 736 (1983) ..................................... 11

Ward v. Rock Against Racism,

491 U.S. 781, 109 S. Ct. 2746,

105 L. Ed. 2d 661 (1989) ............................... 9, 11

STATUTES

26 U.S.C. § 501(c)(4) ................................................... 1

42 U.S.C.S. § 1983 .................................................... 16

1

IDENTITY AND INTEREST

OF THE AMICUS CURIAE1

The NATIONAL SHERIFFS’ ASSOCIATION (the

“NSA”) is a non-profit association formed under 26

U.S.C. 501(c)(4). Formed in 1940 the NSA seeks to

promote the fair and efficient administration of criminal

justice throughout the United States and in particular

to advance and protect the Office of Sheriff throughout

the United States. The NSA has over 13,000 members

and is the advocate for 3,083 sheriffs throughout the

United States.

The NSA also works to promote the public interest

goals and policies of law enforcement throughout the

nation. It participates in the judicial process where

the vital interests of law enforcement and its members

are affected.

1 This brief was not authored in whole or in part by counsel for

any party. No person or entity other than amicus made a

monetary contribution to this brief’s preparation or submission.

Counsel of record for all of the parties received notice of amicus

curiae’s intention to file an amicus brief at least 10 days prior to

the deadline to file the brief.

2

SUMMARY OF ARGUMENT

Qualified immunity is critical for public safety. It

allows peace officers to protect the public by making

split second decisions without fear of legal ramifications where the law is not clearly established as to what

may violate a person’s Constitutional rights. Qualified

immunity protects taxpayer funds earmarked for public

safety by dismissing questionable cases where the law

is unclear without the need for protracted discovery

and litigation, depriving taxpayers of their funds

needed for public safety.

The instant case presents an ideal opportunity to

grant qualified immunity to an officer who arrested a

trespasser, at the request of the property owner, who

happened to be filming the officer. The trespasser’s

assertions of violating his First Amendment rights

can certainly be debated, but such an assertion is

anything but clearly established law. As can be seen

by the dissenting opinion in the instant case, as well

as other similar cases, the law is not clearly established that a trespasser can video law enforcement

anywhere and anytime he desires and be immune to

arrest.

Further, this Court has repeatedly instructed the

court below to not define “clearly established” at too

high a level of generality. Here, the Ninth Circuit did

just that. It declared that the law is clearly established that a peace officer cannot violate a person’s

First Amendment rights without considering the facts

and circumstances of the instant case. This articulation of what law must be clearly established in this

3

case is clearly overbroad and assumes a retaliatory

intent before plaintiff has met his burden of proving

such. The law in this case that must be “clearly established” is whether an officer can arrest someone who

is trespassing at the request of a private property

owner where the trespasser is filming the police or

otherwise engaging in free speech.

In addition, the court below failed to consider that

the plaintiff did not meet the threshold burden of

proof of lack of probable cause for the arrest and

objective evidence of a retaliatory motive behind the

arrest. Accordingly, Officer Newby is entitled to qualified

immunity in this case.

ARGUMENT

I.

Qualified Immunity is Critical to Law

Enforcement

Qualified immunity is an immunity to a civil lawsuit that protects peace officers from suit so long as

their conduct does not violate clearly established law

or constitutional rights of which a reasonable officer

would have known. Qualified immunity allows officers

to respond to incidents in the field and rely on the

current state of the law in making decisions. Qualified

immunity does not prevent individuals from recovering

damages from law enforcement officers who knowingly

violate an individual’s constitutional rights. It only

prevents questionable lawsuits where the constitutional

validity of a particular action was not known at the

time.

4

Qualified immunity protection is important because

peace officers are often called upon to make split second

decisions in the field. Then, long after the incident is

over, a court, attorneys, legal scholars, and experts will

be called upon to decide whether what the officer did,

at that very instance, violated someone’s Constitutional

rights. To make things more difficult, Federal Courts

of Appeal across the country often come to different

conclusions on whether something is actually a constitutional violation. Even members of the U.S. Supreme

Court have frequently disagreed in 5 to 4 decisions as

to whether something violates the Constitution.

To retroactively punish a peace officer for conduct

that he or she had no way of knowing at the time

that such conduct would later be found to violate the

Constitution would be wrong. Fundamental fairness

requires that peace officers not be subject to civil

monetary judgments for conduct that they would not

have known violates the Constitution or in situations

where it was not clearly established that their conduct

would violate the Constitution.

Denying qualified immunity protection for peace

officers in questionable cases is likely to have negative

consequences for law enforcement in America. First,

persons will be less likely to begin a career with, or

remain in, the law enforcement profession, if they know

that at any given moment an action that they have

taken could subsequently be declared unconstitutional,

without warning. And this could result in them being

subject to a money judgment for all of their worldly

possessions.

Additionally, the denial of qualified immunity in

close cases may lead to peace officers refusing to take

any action unless it has been declared constitutional

5

prior to the action being taken. Given the speed at

which incidents occur and the numerous variations on

whether an action could subsequently be deemed unconstitutional, necessary law enforcement activity would

most likely be significantly chilled if qualified immunity

is denied even where the law is unclear.

Ultimately the denial of qualified immunity where

the law is unclear will not only impact law enforcement

directly, but also law enforcement’s ability to provide

public safety to society as a whole. If law enforcement

officers are afraid to do their job for fear of a lawsuit

at every decision, public safety will suffer. Officers

will hesitate to act quickly when time is of the essence.

Tax dollars earmarked for public safety will be used

to defend questionable lawsuits that could otherwise

be used for public safety. Therefore, where the law

pertaining to a specific factual scenario is not clear,

qualified immunity should apply to protect law enforcement from prolonged discovery and litigation.

And as explained below, the present case is a prime

example of a situation where the law was anything

but “clearly established.”

II. The Law of This Case Is Not Clearly Established So as to Deny Qualified Immunity

In the instant case, the District Court and the

Ninth Circuit held that the law was clearly established that it would be unlawful to arrest plaintiff in

retaliation for their First Amendment activity, notwithstanding the existence of probable cause. Bassford v.

Newby, 2025 U.S. App. LEXIS 21869 at 3 (9th Cir.

August 26, 2025). First, this articulation of what law

must be clearly established in this case is clearly overbroad and assumes a retaliatory intent before plaintiff

6

has met his burden of proving such. The law in this

case that must be “clearly established” is whether an

officer can arrest someone who is trespassing at the

request of a private property owner where the trespasser is filming the police or otherwise engaging in

free speech. That is the law which must be “clearly

established” for Officer Newby to have violated plaintiff’s First Amendment right to free speech and to be

denied qualified immunity. And it is not clearly established that an officer cannot arrest a trespasser who

refuses to leave while engaging in free speech at the

request of the private property owner.

In Solomon v. Las Vegas Metro Police Dept., 2023

U.S. Dist. LEXIS 229345, United States District Judge

Cristina Silva found that Ninth Circuit and Supreme

Court precedent allows a police officer to arrest a

trespasser engaging in free speech on presumably

private property when asked to do so by the security

guard of the property owner. And presumably a Federal

District Court Judge in the Ninth Circuit would know

more than a police officer what law is clearly established

in the Ninth Circuit.

In Solomon, Solomon, a professional photojournalist, was assigned by his employer KLAS-TV to film a

protest on the sidewalk of Fashion Show Drive outside

of the Trump International Hotel. 2023 U.S. Dist. LEXIS

229345 at 2-4. As Solomon set up his video equipment

on the sidewalk, Fashion Show Mall security guards

insisted that the sidewalk was private property, told

Solomon that he could not film from his location, and

demanded that he leave (just like in the instant case).

Solomon refused to leave at the direction of Sergeant

Fryman, just like in the instant case. Solomon refused

7

to give his name to the officer, just like in the instant

case.

After the protest ended, Solmon was transported to

Clark County Detention Center where he was booked

for trespassing and obstruction of a police officer.

The Clark County District Attorney’s office declined

to pursue charges against Solomon.

In April 2019, Solomon filed a complaint suing the

Las Vegas Metropolitan Police Department “LVMPD”,

the individual officers involved in his arrest, the Fashion

Show Mall, and Universal Protection for allegedly

violating his civil rights when he was arrested while

filming a protest from the Fashion Show Mall sidewalk.

The LVMPD and officer defendants moved for summary

judgment, contending that (1) Solomon failed to

demonstrate a constitutional violation; (2) the officers

are entitled to qualified immunity; and (3) Solomon

failed to establish a legitimate Monell claim against

the LVMPD.

In Solomon, the court held that the officer

defendants did not violate Solomon’s First Amendment right to free speech and press. 2023 U.S. Dist.

LEXIS 229345 at 8. The court explained that the

First Amendment prohibits government actors from

“abridging the freedom of speech,” citing U.S. Const.

amend. I. Further, “[T]he First Amendment protects

a significant amount of verbal criticism and challenge

directed at police officers.” Solomon, 2023 U.S. Dist.

LEXIS 229345 at 9, citing City of Houston, Tex. v. Hill,

482 U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398

(1987). In fact, the court said, the freedom of individuals

to oppose or challenge police action verbally without

thereby risking arrest is one important characteristic

by which we distinguish ourselves from a police state.

8

But the First Amendment “does not guarantee the right

to communicate one’s views at all times and places or

in any manner that may be desired.” Solomon, 2023

U.S. Dist. LEXIS 229345 at 8, citing Heffron v. Int’l

Soc. for Krishna Consciousness, Inc., 452 U.S. 640,

647, 101. Rather, government actors violate one’s free

speech rights when it restricts constitutionally protected

speech absent sufficient justification. Solomon, 2023

U.S. Dist. LEXIS 229345 at 10, citing Frisby v. Schultz,

487 U.S. 474, 479-81, 108 S. Ct. 2495, 101 L. Ed. 2d

420 (1988).

The court in Solomon explained that to determine

whether government actors infringed an individual’s

First Amendment rights, the court must consider

whether the speech is protected, the nature of the

relevant forum, and whether the justification for the

exclusion satisfies the requisite standard for the

forum. Solomon, 2023 U.S. Dist. LEXIS 229345 at 10,

citing Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788, 797, 105 S. Ct. 3439, 87 L. Ed. 2d

567 (1985). Solomon asserted that the nature of the

speech at issue there was his “right to film an event of

public significance,” his “right to disagree with the

police,” his right to “express his disbelief that he could

not film from a sidewalk open to public traversal,” and

“efforts to make inquiries to police officers about their

tactics and treatment of him.” Solomon, 2023 U.S.

Dist. LEXIS 229345 at 10. The court did not disagree

with Solomon’s summary of his rights. But, upon

review of the record, and viewing the facts in the light

most favorable to Solomon, the court found that there

was no genuine issue of material fact that the officer

defendants did not restrict Solomon’s right to film an

event of public significance, as he was free to film from

9

other locations, just not from a specific segment of the

Fashion Show Mall sidewalk. Solomon, 2023 U.S.

Dist. LEXIS 229345 at 10-11.

The Solomon court found that the evidence did

not show that Solomon was detained for disagreeing

with the officers about the character of the sidewalk

or his alleged right to film therefrom. Rather, the

evidence indicated that the speech in question was

Solomon’s insistence to remain on Fashion Show Mall’s

sidewalk against Sergent Fryman’s directive to move

to another location where he could then film the ongoing protest. Solomon, 2023 U.S. Dist. LEXIS 229345

at 11.

The Solomon court eventually determined that

the nature of the Fashion Show Mall sidewalk, based

on its location directly across the street from the

Trump Hotel in Las Vegas, was a public forum subject

to protections of the First Amendment. Solomon, 2023

U.S. Dist. LEXIS 229345 at 11. But law enforcement

could not have known that the court would make that

determination 6 years later. Assuming they could or

should have predicted the court’s ruling, the Solomon

court held that even in a public forum, the government

may impose reasonable restrictions on the time, place,

or manner of protected speech, provided the restrictions

are justified without reference to the content of the

regulated speech, that they are narrowly tailored to

serve a significant governmental interest, and that

they leave open ample alternative channels for communication of the information. Solomon, 2023 U.S.

Dist. LEXIS 229345 at 12, citing Ward v. Rock Against

Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed.

2d 661 (1989) (quoting Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed.

10

2d 221 (1984)); see also Jacobson v. United States Dep’t

of Homeland Sec., 882 F.3d 878, 882 (9th Cir. 2018).

The Solomon court concluded that the evidence before

the court showed that defendants imposed reasonable

time, place, and manner restrictions. Solomon, 2023

U.S. Dist. LEXIS 229345 at 12.

The court in Solomon found the restriction was

content-neutral. 2023 U.S. Dist. LEXIS 229345 at 12.

Restrictions on speech are content-neutral when they

can be justified without reference to the content of the

regulated speech. Solomon, 2023 U.S. Dist. LEXIS

229345 at 12, citing One World One Fam. Now v. City

& Cnty. of Honolulu, 76 F.3d 1009, 1012 (9th Cir. 1996)

(quoting Clark, 468 U.S. at 293). The court found officer

defendants’ restriction on Solomon’s speech was contentneutral as there was no evidence in the record suggesting that officer defendants targeted the content of

Solomon’s speech. The facts showed that officer defendants were informed that the sidewalk was private

property owned by Fashion Show Mall, and that Fashion

Show Mall did not want any protestors, regardless of

the subject or content of their protest, on their property.

Solomon, 2023 U.S. Dist. LEXIS 229345 at 12-13. The

Solomon court found that because the undisputed evidence demonstrated that the officer defendants cleared

the Fashion Show Mall sidewalk of all protestors—

regardless of their speech—as requested by the Fashion

Show Mall, an action evincing content-neutrality, the

restriction on Solomon’s speech was content-neutral.

Solomon, 2023 U.S. Dist. LEXIS 229345 at 13. Further,

the court found the restriction was narrowly tailored.

Solomon, 2023 U.S. Dist. LEXIS 229345 at 14.

A restriction on free speech is narrowly tailored if

it does not burden substantially more speech than is

11

necessary to further the government’s legitimate

interests. Solomon, 2023 U.S. Dist. LEXIS 229345 at

13, citing Ward, 491 U.S. at 799. Although sidewalks

are open to the public, including for expressive activities,

the government has a legitimate interest in ensuring

public safety and order, promoting the free flow of

traffic on streets and sidewalks, and protecting property

rights. Solomon, 2023 U.S. Dist. LEXIS 229345 at 1314, citing McCullen v. Coakley, 573 U.S. 464, 486, 134

S. Ct. 2518, 189 L. Ed. 2d 502 (2014); United States v.

Grace, 461 U.S. 171, 179, 103 S. Ct. 1702, 75 L. Ed. 2d

736 (1983). The fact that protestors were able to continue to demonstrate across the street showed that

officer defendants did not substantially burden speech

more than necessary. Solomon, 2023 U.S. Dist. LEXIS

229345 at 14. The restriction left ample means of

communication open. Id.

In sum, the Solomon court held that because the

officer defendants’ restriction on Solomon’s right to

protest on the Fashion Show Mall sidewalk was contentneutral, narrowly tailored, and left open adequate alternative channels for communication, it was a permissible time, place, and manner restriction on speech and

did not violate the First Amendment. Accordingly, the

court granted defendants summary judgment on Solomon’s First Amendment claim against officer defendants.

The Solomon court also found that the officer defendants did not violate Solomon’s Fourth Amendment

right to be free of unlawful searches and seizures.

Solomon, 2023 U.S. Dist. LEXIS 229345 at 18. defendants correctly contended that their initial detention of

Solomon is justified because they developed reasonable

suspicion that Solomon was committing the crime of

12

trespass when he refused to move. Id. Officer defendants gave him multiple opportunities to grab his

camera equipment and move to an alternative location

to film but Solomon refused and entrenched himself,

committing the act of willfully remaining upon the

land on which he had been warned to leave. Thus, it

was reasonable for officers to believe that Solomon

was trespassing on private property, according to the

court. Solomon, 2023 U.S. Dist. LEXIS 229345 at 19.

He also refused to identify himself, prompting the

officers to detain him for failure to identify. Solomon’s

refusal to identify himself also gave rise to a probable

cause arrest according to the court. Solomon, 2023

U.S. Dist. LEXIS 229345 at 20. Therefore, the officer

defendants did not violate Solomon’s Fourth Amendment right to be free from unlawful searches and

seizures. Id. at p. 21.

As in Solomon, in the present case, Officer Newby

arrested a trespasser on private property, at the request

of the security guard, who refused to leave despite

repeated instructions to do so and refused to identify

himself. Plaintiff could have continued filming Officer

Newby outside of the private property, just as in Solomon. And as in Solomon, Officer Newby did not violate

plaintiff’s First Amendment rights of free speech in

doing so.

Furthermore, if the law in this case is so “clearly

established,” why has District Court Judge Fitzwater,

in the instant case, dissented believing that Officer

Newby was entitled to qualified immunity? Should

Officer Newby be held to a higher legal standard of

knowledge than Judge Fitzwater?

13

III. This Court has Repeatedly Instructed the

Ninth Circuit Not to Define “Clearly Established” at Too High a Level of Generality

In City & Cnty. of San Francisco v. Sheehan, 575

U.S. 600, 135 S. Ct. 1765, 191 L. Ed. 2d 856 (May 18,

2015), this Court found that the Ninth Circuit’s holding

on clearly established law was far too general a proposition to control that case. 575 U.S. at 613. There,

this Court stated, “We have repeatedly told courts—

and the Ninth Circuit in particular—not to define clearly

established law at a high level of generality,” citing alKidd, supra, at 742, 131 S. Ct. 2074, 179 L. Ed. 2d 1149,

1160. This Court in Sheehan emphatically stated that

Qualified immunity is no immunity at all if “clearly

established” law can simply be defined as a general

proposition of law. 575 U.S. at 613. And in the instant

case, the Ninth Circuit did just that stating that the

law was clearly established that it would be unlawful

to arrest plaintiff in retaliation for his First Amendment activity. Such a pronouncement of what needs to

be “clearly established” for qualified immunity purposes

is devoid of any particular facts or circumstances of

the instant case.

Here, Officer Newby was told by the security guard

(agent of the private property owner) that plaintiff

was trespassing and had to be removed from the property. Officer Newby did so after plaintiff refused to

leave and was, therefore, in violation of the trespassing law. Further, plaintiff refused to identify himself

which was also a violation of the law. He was therefore

arrested. These are the facts that must be considered

in determining if Officer Newby violated “clearly established” law.

14

In City of Escondido v. Emmons, 586 U.S. 38, 139

S. Ct. 500, 202 L. Ed. 2d 455 (January 7, 2019), this

Court again admonished the Ninth Circuit on defining

“clearly established” at too high a level of generality.

In that case, this Court explained that facts of the

particular case at hand must be considered, stating,

“Under our cases, the clearly established right must

be defined with specificity. This Court has repeatedly

told courts . . . not to define clearly established law at

a high level of generality,” citing Kisela, 584 U. S., at

___, 138 S. Ct. 1148, 200 L. Ed. 2d 449, at 454. 586

U.S. at 42. There, this Court explained as follows:

“[I]t does not suffice for a court simply to state

that an officer may not use unreasonable and

excessive force, deny qualified immunity, and

then remit the case for a trial on the question

of reasonableness. An officer cannot be said

to have violated a clearly established right

unless the right’s contours were sufficiently

definite that any reasonable official in the

defendant’s shoes would have understood that

he was violating it.” Id., at ___, 138 S. Ct. 1148,

200 L. Ed. 2d 449, at 454 (quotation altered

[by the Court]).

In this case, the Court of Appeals contravened those settled principles. The Court of

Appeals should have asked whether clearly

established law prohibited the officers from

stopping and taking down a man in these

circumstances. Instead, the Court of Appeals

defined the clearly established right at a high

level of generality by saying only that the

“right to be free of excessive force” was clearly

established. With the right defined at that

15

high level of generality, the Court of Appeals

then denied qualified immunity to the officers

and remanded the case for trial. 716 Fed.

Appx., at 726.

586 U.S. at 42-42.

This Court in City of Escambia emphasized the

importance of not defining clearly established too

generally without accounting for the particular circumstances of the case. This Court explained:

Under our precedents, the Court of Appeals’

formulation of the clearly established right

was far too general. To be sure, the Court of

Appeals cited the Gravelet-Blondin case

from that Circuit, which described a right to

be “free from the application of non-trivial

force for engaging in mere passive resistance. . . . ”, the Ninth Circuit’s GraveletBlondin case law involved police force against

individuals engaged in passive resistance.

The Court of Appeals made no effort to explain

how that case law prohibited Officer Craig’s

actions in this case. That is a problem under

our precedents:

“[W]e have stressed the need to identify a case

where an officer acting under similar circumstances was held to have violated the Fourth

Amendment. . . . While there does not have

to be a case directly on point, existing precedent must place the lawfulness of the particular [action] beyond debate. . . . Of course,

there can be the rare obvious case, where the

unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent

16

does not address similar circumstances. . . .

But a body of relevant case law is usually

necessary to clearly establish the answer. . . .

” Wesby, 583 U. S., at ___, 138 S. Ct. 577, 199

L. Ed. 2d 453, at 468 (internal quotation

marks omitted).

The Court of Appeals failed to properly analyze whether clearly established law barred

Officer Craig from stopping and taking down

Marty Emmons in this manner as Emmons

exited the apartment. Therefore, we remand

the case for the Court of Appeals to conduct

the analysis required by our precedents with

respect to whether Officer Craig is entitled

to qualified immunity.

City of Escondido v. Emmons, 586 U.S. at 43.

Again in Rivas-Villegas v. Cortesluna, 595 U.S. 1,

142 S. Ct. 4, 211 L. Ed. 2d 164 (October 18, 2021), this

Court found that the Ninth Circuit failed to consider

the specific facts of the case in denying qualified

immunity to officers. There, in an action alleging

excessive force under 42 U.S.C.S. § 1983, this Court

held that the court of appeals erred when it determined that the police officer was not entitled to qualified

immunity because neither the arrestee nor the court

of appeals identified any U.S. Supreme Court case that

addressed facts like the ones at issue. 595 U.S. at 5.

Further, even assuming that Circuit precedent could

clearly establish law for purposes of § 1983, the precedent the court of appeals relied on was materially

distinguishable and thus did not govern the facts of

this case. Id. This Court held that because the facts of

cases relied upon by the court of appeals did not give

the officer fair notice that his actions constituted a

17

violation of clearly established law, the officer was

entitled to qualified immunity. Id.

Unfortunately, the Ninth Circuit in the instant

case has failed to follow this Court’s repeated instructions on not defining “clearly established” law for

qualified immunity purposes at too high a level of

generality. The Ninth Circuit failed to consider the

facts and circumstances of this particular case in

holding that the law was “clearly established” that

Officer Newby violated plaintiff’s First Amendment

rights.

IV. Here, Plaintiff Failed to Meet His Burden of

Proof of a Retaliatory Motive

This Court has clearly set out the burden of proof

required to show a violation of a First Amendment

Right to free speech in Nieves v. Bartlett, 587 U.S. 391,

139 S. Ct. 1715, 204 L. Ed. 2d 1 (May 28, 2019). There,

a rowdy partygoer, Bartlett, refused to speak with an

officer and became belligerent with another officer.

Bartlett was arrested for disorderly conduct and resisting arrest. The District Court granted summary judgment for the officer but the Ninth Circuit reversed.

This Court reversed and remanded the case with

clear guidelines to establish a retaliatory arrest claim.

In Nieves, this Court explained that where probable

cause exists for an arrest, a plaintiff claiming retaliatory

arrest in violation of his First Amendment right to

free speech must put forth objective evidence that he

was arrested when otherwise similarly situated

individuals not engaged in the same sort of protected

speech had not been. Nieves, 587 U.S. at 407. This

Court further explained as follows:

18

And like a probable cause analysis, it provides

an objective inquiry that avoids the significant problems that would arise from reviewing police conduct under a purely subjective

standard. Because this inquiry is objective,

the statements and motivations of the particular arresting officer are “irrelevant” at this

stage. After making the required showing,

the plaintiff’s claim may proceed in the same

manner as claims where the plaintiff has

met the threshold showing of the absence of

probable cause.

Id.

According to Nieves, plaintiff has to show objective evidence of a retaliatory motive whether or not

probable cause exists for the arrest. Nieves, 587 U.S. at

404. Here, plaintiff has not made the required showing

of retaliatory motive. Even if a plaintiff shows an

absence of probable cause, he must then show that the

retaliation was a substantial or motivating factor behind

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

can prevail only by showing that the arrest would

have been initiated without respect to retaliation. Id.

In the present case, plaintiff has not produced

any objective evidence that Officer Newby has not

arrested other people for trespassing when confronted

with people on private property without permission

who are asked to leave. Further, the evidence shows

that it was the agent of the private property owner,

here the security guard, who informed Officer Newby

that plaintiff was trespassing. Therefore, Officer

Newby’s reason for arresting plaintiff was the security guard’s desire, not Officer Newby’s desire. This is

objective evidence that Officer Newby did not have a

19

retaliatory motive in arresting plaintiff. So even if probable cause was not present for the arrest, no objective

evidence exists of Officer Newby’s alleged retaliatory

intent.

V.

Further, Plaintiff Failed to Meet His

Threshold Burden to Prove No Probable

Cause for Arrest

Plaintiff has failed to put forth evidence that the

arrest was unreasonable and lacked probable cause.

Plaintiff was on private property which had a “NO

TRESPASSING” sign and was asked to leave the

premises. Officer Newby’s subjective intent has no

bearing on whether the arrest was reasonable.

In Nieves, this Court explained that legal tests

based on reasonableness are generally objective. Nieves,

587 U.S. at 403. This Court has long taken the view

that evenhanded law enforcement is best achieved by

the application of objective standards of conduct,

rather than standards that depend upon the subjective

state of mind of the officer. Id. Police officers conduct

approximately 29,000 arrests every day – a dangerous

task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.

Id. To ensure that officers may go about their work

without undue apprehension of being sued, courts generally review their conduct under objective standards

of reasonableness. Id. Thus, when reviewing an arrest,

courts ask whether the circumstances, viewed objectively, justify the challenged action, and if so, conclude

that action was reasonable whatever the subjective

intent motivating the relevant officials. Id. This Court

has stated, “A particular officer’s state of mind is simply

20

irrelevant, and it provides no basis for invalidating an

arrest.” Id.

Here, plaintiff has failed to meet his threshold

burden of proof that no probable cause existed for the

arrest. Simply alleging a retaliatory motive on the

part of Officer Newby is insufficient to meet that burden.

In Judge Fitzwater’s dissent in the instant case,

he explains that as recently as 2024, after the October

9, 2021 incident at issue in this case, the Supreme

Court again recognized in the context of a First

Amendment retaliation claim that, as a general rule,

a plaintiff bringing a retaliatory arrest claim must

plead and prove the absence of probable cause for the

arrest, citing Gonzales v. Trevino, 602 U.S. 653, 655

(2024) (per curiam). Bassford v. Newby, 2025 U.S.

App. LEXIS 21869 at 8 (9th Cir. August 26, 2025).

There the Court acknowledge this is a general rule

subject to a narrow exception where plaintiff presents

objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the

same sort of protected speech had not been. In the

instant case, plaintiff Bassford cites this exception in

his response brief, Appellee Br. 24-25 n. 8, but he does

not allege that it applies in this case. 2025 U.S. App.

LEXIS 21869 at 8, Footnote 1.)

21

CONCLUSION

Based on the above, amicus prays that this Court

find that Officer Newby did not violate plaintiff’s First

Amendment right to film the police by arresting him

for trespassing. Alternatively, amicus prays that this

Court find that Officer Newby did not violate any

“clearly established” law and is, therefore, entitled to

qualified immunity. In the further alternative, amicus

prays that this Court grant the Petition for Certiorari.

Respectfully submitted,

Gregory C. Champagne

Counsel of Record

Maurice E. Bostick

ST. CHARLES PARISH SHERIFF’S OFFICE

260 Judge Edward Dufresne Parkway

Luling, LA 70070

(985) 783-2883

sheriffgc@stcharlessheriff.org

Counsel for Amicus Curiae

March 10, 2026