Amicus Curiae Brief — Lozman v. City of Riviera Beach, 138 S. Ct. 447 (2017) (No. 17-21)

No. 1 7-2 1

In The

Supreme Court of the United States

e

.

FANE LOZMAN,

Petitioner,

v.

CITY OF RIVIERA BEACH, FLORIDA,

Respondent.

,

-

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

,

-

BRIEF FOR THE STATE OF ALASKA AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

,

—_

JAHNA LINDEMUTH

Attorney General

State of Alaska

DARIO BORGHESAN*

Assistant Attorney General

ANNA R. JAY

Assistant Attorney General

1031 W. Fourth Ave.

Suite 200

Anchorage, AK 99501

(907) 269-5100

dario.borghesan@alaska.gov

*Counsel of Record

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

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

Court held that probable cause defeats a First Amend-

ment retaliatory-prosecution claim as a matter of law.

Does probable cause likewise defeat a First Amend-

ment retaliatory-arrest claim?

il

TABLE OF CONTENTS

Page

INTERESTS OF AMICUS CURIAE STATE OF

EE bisicintbietiiiabsandiardantishanuinerinetemenientiemeniee 1

SUMMARY OF ARGUMENT ........00.0..............0000 2

ttictintiniiddstbsnemedserinigsinsintinenentionanens 4

I. Retaliatory-arrest claims commonly arise

out of everyday police encounters ............. 6

Il. Without a requirement to show that prob-

able cause was lacking, weak retaliatory-

arrest claims can easily survive summary

i iieihiesbicdincanstabibaahineinbopaiabivinininatileiidieiatabeneee 12

III. Exposing officers to meritless retaliatory-

arrest claims risks undercutting their

performance and undermining public

IIIT Ui aitek ania satesienlinatigdtiatiaptaabnawigeiantasiatbte 16

ili

TABLE OF AUTHORITIES

CASES

Adkins v. Limtiaco, 537 F. App’x 721 (9th Cir.

SEED noxeccecsnsavesonasnansutasnanssonsinipienbnnentinvanummnlaiis 17

Bartlett v. Nieves, No. 16-35631, 2017 WL

4712440 (9th Cir. Oct. 20, 2017) ..................00 passim

Bartlett v. Nieves, No. 4:15-cv-00004-SLG, 2016

WL 3702952 (D. Alaska July 7, 2016) ....7, 8, 9, 16, 17

Beck v. City of Upland, 527 F.3d 853 (9th Cir.

IRIE sccenncsosevininseunesstnniswnicunisnssbicndiadbeaiaiadiaintaiaieedil 18

Blomquist v. Town of Marana, 501 F. App’x 657

GEe GI Fee evcesintevcissnevtztcsoccscntiiathapitadimendaitlasieiias 17

Chavez v. Illinois State Police, 251 F.3d 612 (7th

GFR FIND esasecconcccnnssccquninticisnatainisnestadenmitnindiaguimieds 15

City of Houston v. Hill, 482 U.S. 451 (1987)................. 9

Crawford-El v. Britton, 523 U.S. 574 (1998) ...... 4,5,12

Dell’Orto v. Stark, 123 F. App’x 761 (9th Cir.

PED csscosseresisnessevensinenstapuiescandaipioamamdemaiaiianias 11

Devenpeck v. Alford, 543 U.S. 146 (2004) ................... 14

Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892

Ee GI Fi ientesccvnsccnsevesenseintniesinceniipiivitiaiiiiciautes 13, 18

Dirks v. Grasso, 449 F. App’x 589 (9th Cir. 2011)....... 17

Engman v. City of Ontario, No. EDCV 10-284

CAS (PLAx), 2011 WL 13134048 (C.D. Cal.

NT TK, Be Oe cncaserncesccsrareresennatstticctihetnianiiainiabeiiad 10

Farm Labor Org. Comm. v. Ohio State Highway

Patrol, 308 F.3d 523 (6th Cir. 2002)..................00000. 15

iv

TABLE OF AUTHORITIES — Continued

Page

Ford v. City of Yakima, 706 F.3d 1188 (9th Cir.

ERE ae ee 3, 6,9, 17

Glair v. City of Los Angeles, 437 F. App’x 581 (9th

REESE ne 17

Gutierrez v. County of Los Angeles, 545 F. App’x

TS EL eR 17

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........... 2, 5,6

Hartman v. Moore, 547 U.S. 250 (2006) ....... 4, 5, 15,17

Holguin v. City of San Diego, 135 F. Supp. 3d

Ec 10

Tkei v. City and County of Honolulu, 441 F. App’x

a 17

Jackson v. City of Pittsburg, 518 F. App’x 518

EEE EE CE 17

Kubanyi v. Covey, 391 F. App’x 620 (9th Cir.

Sr stiiih i ar critientaiaiaintemnamnnapenaepansangupeanetecseenseese 18

Lacey v. Maricopa County, 693 F.3d 896 (9th Cir.

EE EE ee 17

Maidhof v. Celaya, 641 F. App’x 734 (9th Cir.

ESE ee 13, 14, 17

Martin v. Naval Criminal Investigative Serv.,

539 F. App’x 830 (9th Cir. 2013)...............cccccceees 17

Mihailovici v. Snyder, 2017 WL 1508180 (D. Or.

ee 13

Morgan v. County of Hawaii, CV No. 14-00551

SOM-BMK, 2016 WL 125422 (D. Haw. Mar.

NE 10

Vv

TABLE OF AUTHORITIES — Continued

Page

Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle,

a Oe cccictttttricitnensittiintcnnertinatonie 3,4

Nichols v. City of Portland, 622 F. App’x 679 (9th

a ee cactnscrsiinicnsnsincitenntapretininininiienbieeninedapiaiinnemnes 17

Picray v. Duffitt, 652 F. App’x 497 (9th Cir.

IEE i cainecehninsistuinebiindaniecedipeanbeienibiitesaitindniibiitipatitimeimennennes 17

Ra El v. Crain, 399 F. App’x 180 (9th Cir. 2010)........ 18

Reed v. Lieurance, 863 F.3d 1196 (9th Cir. 2017)....... 17

Reichle v. Howards, 566 U.S. 658 (2012)..................... 4

Richards v. City of Los Angeles, 261 F. App’x 63

Se SN cesievevccsseiccrydsersenatesineiniatiptiteeiienemmnenes 15

Scallion v. City of Hawthorne, 280 F. App’x 671

Se 18

Sharp v. County of Orange, 871 F.3d 901 (9th Cir.

REID csnnienmatniessansntnnginatmenmnenanieanaiiemeesieminnain 17

Skoog v. County of Clackamas, 469 F.3d 1221

a ee 18

Smith v. City of Payson, No. CIV 10-2650 PHX

MEA, 2012 WL 12881975 (D. Ariz. 2012)............... 11

Tarahoui v. Brown, 539 F. App’x 734 (9th Cir.

UIT caitinevaicttaistinstanidenntblinnnididiniimanieidiiiiieen 17

Tarr v. Maricopa County, 256 F. App’x 71 (9th

SE ED ceratrennensscncuvanieememnennapesanennanneseamnpemnaneences 18

United States v. Armstrong, 517 U.S. 456 (1996)....... 15

United States v. Bell, 86 F.3d 820 (8th Cir.

vi

TABLE OF AUTHORITIES — Continued

Page

Vohra v. City of Placentia, 683 F. App’x 564 (9th

GE FETE ccconcrtncintsnnnsnetitabinensienaienintnideantinrimaneianasias 17

White v. County of San Bernardino, 503 F. App’x

ey ey i ctnresnsenssentnnannnentotandnen 11, 13, 14, 17

Willes v. Linn County, 650 F. App’x 444 (9th Cir.

ES Eee 17

Wilson v. City of San Diego, 462 F. App’x 683 (9th

EES Ene e an C e 18

CONSTITUTIONAL PROVISIONS

8 1, 2,3, 4,8

eee 14

I a ee 15

STATUTES

1

INTERESTS OF AMICUS

CURIAE STATE OF ALASKA

The State of Alaska protects its citizens and en-

forces its laws through its statewide law enforcement

agency, the Alaska State Troopers. Over 300 troopers

investigate crimes, patrol highways, and maintain

public order in some of the smallest, most remote com-

munities in the nation. Alaska has a paramount inter-

est in ensuring that its officers are able to vigorously

protect the public without the threat of harassing liti-

gation from unfounded claims of First Amendment re-

taliation under 42 U.S.C. § 1983. The State also has a

concrete financial interest in minimizing its troopers’

exposure to liability because it indemnifies them for

unfavorable judgments based on actions within the

scope of their employment.

The State’s interests are far from theoretical: the

outcome of this case will directly impact a retaliatory-

arrest claim pending against two Alaska troopers

after a recent decision by the Ninth Circuit Court

of Appeals, Bartlett v. Nieves, No. 16-35631, 2017

WL 4712440 (9th Cir. Oct. 20, 2017).' In that case,

the Court of Appeals recognized the existence of prob-

able cause to arrest the claimant for assault but

* The troopers in that case, who are represented by state at-

torneys, will be filing a petition for a writ of certiorari to the Ninth

Circuit on or before February 19, 2018. They will ask the Court to

grant the petition and hold that case so it can be decided consist-

ently with this case. The Ninth Circuit has stayed its mandate

pending the filing of the petition for certiorari. Bartlett, No. 16-

35631, Dkt. 47.

2

nonetheless reversed the district court’s grant of sum-

mary judgment to the arresting officers. Jd. at *1, 2.

The State thus has an immediate interest in protecting

these troopers from trial by establishing that the ex-

istence of probable cause to arrest forecloses a retalia-

tory-arrest claim.

@®

-

SUMMARY OF ARGUMENT

A plaintiff asserting a claim of retaliatory arrest

in violation of the First Amendment should be required

to plead and prove that the arrest was not supported

by probable cause. Without this rule, law enforcement

officers are vulnerable to meritless retaliatory-arrest

claims, “at a cost not only to the defendant officials, but

to society as a whole.” Harlow v. Fitzgerald, 457 U.S.

800, 814 (1982). Exposing officers to these difficult-to-

defend suits both burdens them with the demands of

increased litigation and threatens to deter them from

making arrests that are supported by probable cause

and important to protect public safety.

Fane Lozman’s unique story obscures how a ruling

in his favor would hinder law enforcement officers in

routine community policing situations. A far more rep-

resentative claim of retaliatory arrest is the Ninth Cir-

cuit’s recent decision in Bartlett v. Nieves, No. 16-

35631, 2017 WL 4712440 (9th Cir. Oct. 20, 2017), which

plainly illustrates the problems of allowing these

claims to proceed despite the existence of probable

cause. The Ninth Circuit panel in Bartlett ruled that

3

troopers patrolling a Bacchanalian snowmobile racing

festival in the Alaskan wilds had probable cause to ar-

rest a man for assault, disorderly conduct, and harass-

ment after he accosted them during an investigation.

Id. at *2. But in the Ninth Circuit, the existence of

probable cause for an arrest does not bar a claim that

the arrest was retaliatory. Id. (citing Ford v. City of Ya-

kima, 706 F.3d 1188, 1195-96 (9th Cir. 2013)). The of-

ficers now face trial on a dispute over their subjective

intent, despite the objective reasonableness of arrest-

ing a drunk, belligerent man who seemed poised to as-

sault them. Jd.

The Bartlett decision shows how easily almost any

routine arrest can boomerang into a First Amendment

retaliation claim if the arrestee expresses irritation

when confronted by police. It also shows how difficult

it is to defeat even meritless claims of retaliatory ar-

rest. And it shows the dilemma that police will face if

this Court rules in Lozman’s favor. When a person

whom police reasonably believe has committed a crime

engages in some kind of protected expression — even

just an abusive tirade — officers will have to decide

whether the public safety benefit of arresting him is

worth the personal risk of being sued for retaliatory

arrest. Ruling that a retaliatory-arrest claim is barred

if the arrest was supported by probable cause will en-

sure that officers do not have to make that choice.

@

-

4

ARGUMENT

Evidence of probable cause is highly probative of

the key issue in most retaliatory-arrest claims:

whether retaliation against protected speech was the

“but-for cause” of the arrest. Hartman v. Moore, 547

U.S. 250, 256, 265 (2006). Requiring a plaintiff to plead

and prove that the arrest lacked probable cause thus

effectively filters out meritless claims. See id. at 261

(*(E|stablishing the existence of probable cause will

suggest that prosecution would have occurred even

without a retaliatory motive.”). The Ninth Circuit’s de-

cision in Bartlett v. Nieves, No. 16-35631, 2017 WL

4712440 (9th Cir. Oct. 20, 2017), and other cases illus-

trate how, without this protection, police officers’ vul-

nerability to meritless retaliatory-arrest claims

undermines their ability to protect the public.

To prove a claim of First Amendment retaliation

under 42 U.S.C. § 1983, a plaintiff must show that re-

taliation against his protected speech was the “but-for

cause” of the official action against him. Hartman, 547

US. at 256 (citing Crawford-El v. Britton, 523 U.S. 574,

593 (1998); Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977)). In Hartman v. Moore,

the Court ruled that a plaintiff claiming that he was

prosecuted in retaliation for his speech must plead and

prove that there was no probable cause for the prose-

cution. 547 U.S. at 266-67. This rule is justified by the

complexity of showing a causal connection between the

alleged retaliatory motive and the prosecution, and by

the “powerful evidentiary significance” of probable

cause in proving that connection “in practically all

5

cases.” Id. at 261, 265. Given the “close relationship”

between claims of retaliatory prosecution and retalia-

tory arrest, these reasons apply with similar force to

the latter. See Reichle v. Howards, 566 U.S. 658, 670

(2012). And as Respondent City of Riviera Beach ex-

plains, requiring plaintiffs to plead and prove lack of

probable cause when making retaliatory-arrest claims

is consistent with both the claim’s common law ante-

cedents and the Court’s preference for objective tests

in adjudicating constitutional torts.

Requiring plaintiffs asserting retaliatory-arrest

claims to show lack of probable cause serves another

salutary function: protecting police officers from un-

founded claims. “Because an official’s state of mind is

easy to allege and hard to disprove, insubstantial

claims that turn on improper intent may be less ame-

nable to summary disposition than other types of

claims against government officials.” Crawford-El, 523

U.S. at 584-85. These claims are also harder to defend

against at trial. Although other § 1983 claims are usu-

ally resolved on the basis of extrinsic, verifiable evi-

dence, retaliatory-arrest claims will often turn on the

credibility of the officer’s own testimony about his sub-

jective intent. Not only will officers who act in good

faith have difficulty avoiding trial, they will have far

less confidence of being vindicated there.

These officers will get little protection from quali-

fied immunity. Qualified immunity shields officers

from liability if “their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v.

6

Fitzgerald, 457 U.S. 800, 818 (1982). If the Court rec-

ognizes a right to be free from retaliatory arrest re-

gardless of probable cause, then a plaintiff will be able

to negate qualified immunity simply by alleging some

fact suggesting retaliatory motive. So while the Court

has stressed the imporiance of protecting government

officials who act in good faith not only from monetary

liability but also from the costs of being forced to stand

trial, id. at 816 (warning of “distraction of officials from

their governmental! duties, inhibition of discretionary

action, and deterrence of able people from public ser-

vice”), even police officers who act in good faith will not

enjoy this protection when faced with retaliatory-ar-

rest claims.

Requiring plaintiffs to plead and prove probable

cause is thus an essential protection against un-

founded retaliatory-arrest claims. Litigation in the

Ninth Circuit, which has rejected this rule, Ford v. City

of Yakima, 706 F.3d 1188, 1195-96 (9th Cir. 2013), illus-

trates precisely why the rule is needed to ensure police

are not deterred from vigorously protecting public

safety.

I. Retaliatory-arrest claims commonly arise

out of everyday police encounters.

When weighing the costs and benefits of a proba-

ble-cause requirement, the Court should take into ac-

count the day-to-day circumstances that officers

encounter and that commonly spur retaliatory-arrest

claims against them. It is unusual to be arrested at a

7

city council meeting, and some of Lozman’s hypothet-

ical arrests are far-fetched indeed — it seems doubtful

that someone has ever been subject to arrest, retalia-

tory or otherwise, for shallowly burying a diseased

hamster. Pet. Br. 23. Retaliatory-arrest claims are

much more likely to arise out of routine community po-

licing encounters.

The Bartlett decision presents a far more typical

scenario and illustrates the ease with which anyone

who criticizes, insults, or protests officers can assert a

colorable retaliatory-arrest claim. Russell Bartlett was

arrested at Arctic Man, an extreme ski and snowmo-

bile racing event in the remote Hoodoo Mountains of

Alaska that features large crowds and abundant alco-

hol use. Bartlett v. Nieves, No. 4:15-cv-00004-SLG, 2016

WL 3702952, *1 (D. Alaska July 7, 2016), affirmed in

part, reversed in part by Bartlett v. Nieves, 2017 WL

4712440 at *1. While investigating underage drinking

at a party at 1:30 am, Alaska State Trooper Luis

Nieves attempted to speak to Bartlett. Bartlett, 2016

WL 3702952 at *1. Bartlett declined to speak to

Trooper Nieves, so Nieves left Bartlett and headed to-

ward the trooper vehicle. Bartlett then marched up to

Trooper Bruce Weight, who was interviewing a minor,

and loudly challenged the Trooper’s authority to speak

with the young man. Jd. The district court found that

video recording of the incident showed “Trooper

Weight, Mr. Bartlett, and the minor standing very close

together exchanging words” and that “Bartlett’s right

hand was at roughly shoulder height within inches of

8

Trooper Weight’s face.”* Jd. at *2. The 5'9", 240-pound

Bartlett, who at the time of the incident was too intox-

icated to drive, Bartlett, No. 16-35631, Dkt. 23 at 43,

46, later maintained that his close proximity to

Trooper Weight and loud voice were appropriate given

the volume of music at the party, but Trooper Weight

viewed Bartlett’s “escalating voice, his look of anger,

[and] his body language” as “hostile” “pre-assault indi-

cators.” Id. Dkt. 8-1 at 92.

To create a safe space for himself, Trooper Weight

placed his open palms on Bartlett’s chest and pushed

him back. Bartlett, 2016 WL 3702952 at *1; No. 16-

35631, Dkt. 23 at 39. Trooper Nieves, believing that

Bartlett posed a danger to Weight, ran to help, and

both officers restrained and then arrested Bartlett. No.

16-35631, Dkt. 8-1 at 72-73. He was released a few

hours later without injury. Jd. Dkt. 23 at 42, 55. Bart-

lett was charged with disorderly conduct and resisting

arrest. Bartlett, 2016 WL 3702952 at *3. The prosecu-

tion later dismissed the case, id. at *3, but the assigned

prosecutor stated to the district court that he believed

probable cause existed to charge Bartlett for disorderly

conduct, resisting arrest, and assault. No. 16-35631

Dkt. 8-1 at 113.

Bartlett sued Troopers Weight and Nieves, assert-

ing several claims under § 1983, including retaliatory

arrest in violation of the First Amendment. The

? The camera’s view of Bartlett’s hand was partially blocked,

so the video does not show, and the parties dispute, whether Bart-

lett raised his hand to Weight’s face before the Trooper pushed

him back or after.

9

district court granted summary judgment in favor of

the troopers on all claims, Bartlett, 2016 WL 3702952

at *4-12, and the Ninth Circuit affirmed on all claims

except for retaliatory arrest, Bartlett, 2017 WL

4712440 at *1-2. The appellate court ruled that the

troopers had probable cause to arrest Bartlett for as-

sault, disorderly conduct, harassment, and resisting

arrest. Id. Nevertheless, the court reiterated its earlier

holding in Ford v. City of Yakima that probable cause

for an arrest does not bar a plaintiff’s claim that the

arrest was retaliatory in violation of the First Amend-

ment. Jd. at *2 (citing Ford, 706 F.3d at 1196). The

court found that a jury might be persuaded that Bart-

lett was arrested not for his harassing and belligerent

conduct, but because of his earlier refusal to assist

with the investigation. Jd. The court’s conclusion was

based solely on Bartlett’s uncorroborated claim that

Trooper Nieves said after the arrest, “Bet you wish you

would have talked to me earlier.” The court thus ruled

that summary judgment should not have been granted.

Id.

The Bartlett case iliustrates how almost any ar-

rest can transform into a retaliatory-arrest claim — and

promptly subject an officer to the burdens of litigation

— if the suspect engages in some kind of expressive ac-

tivity, even just personal insults. See City of Houston v.

Hill, 482 U.S. 451, 461 (1987) (“[T)he First Amendment

protects a significant amount of verbal criticism and

challenge directed at police officers.”). The Bartlett

case is not an outlier. Other retaliatory-arrest claims

in the Ninth Circuit have originated in arrests for

10

disorderly conduct, assault, traffic stops, and other sit-

uations requiring police to act quickly in the interest

of public safety:

¢ Aman ejected from a professional football

game for intoxication and arrested after

attempting to re-enter the stadium al-

leged that his arrest was in retaliation for

identifying himself as an off-duty officer

and asking police to “take it easy,” Hol-

guin v. City of San Diego, 135 F. Supp. 3d

1151, 1162-63 (S.D. Cal. 2015) (granting

summary judgment in favor of officers on

retaliation claim);

¢ A group arrested after an evening of

drinking that culminated in a physical al-

tercation with police officers who were es-

corting them from a comedy club that had

ejected them alleged that they were ar-

rested in retaliation for one man’s state-

ment to police that “even [his] father

could kick their asses,” Engman v. City of

Ontario, No. ECDV 10-284 CAS (PLAx),

2011 WL 13134048, *1-2, 10 (C.D. Cal.

May 23, 2011) (denying summary judg-

ment on retaliation claim);

¢ A woman arrested for criminal trespass

and resisting arrest when she refused to

vacate her camp on government property

after being served with a court order of

ejectment alleged that her arrest was in

retaliation for verbally challenging an of-

ficer’s instructions to pack her belongings

and leave, Morgan v. County of Hawaii,

11

No. CV 14-00551 SOM-BMK, 2016 WL

1254222, *5, 18-20 (D. Haw. Mar. 29,

2016) (awarding qualified immunity to

defendants on retaliation claim);

A man arrested after trying to operate a

vehicle while visibly intoxicated alleged

that his arrest was in retaliation for his

complaints about the officer’s actions,

Dell’Orto v. Stark, 123 F. App’x 761, 762-

63 (9th Cir. 2005) (reversing denial of of-

ficer’s motion for summary judgment);

A man arrested for assaulting a minor

whom he had lured to his home by send-

ing a text message from his daughter’s

phone alleged that he was arrested in re-

taliation for having previously com-

plained to police about the minor's

relationship with his daughter, Smith v.

City of Payson, No. CIV 10-2650 PHX

MEA, 2012 WL 12881975 (D. Ariz. 2012)

(granting summary judgment in favor of

officers), aff’d, 585 F. App’x 421 (9th Cir.

2014);

A man whom officers subjected to a pat-

down search after observing him reach

under the seat of his car during a traffic

stop alleged that the search was in retal-

iation for his cursing at officers and ac-

cusing them of “just f**king with [him],”

White v. County of San Bernardino, 503 F.

App’x 551 (9th Cir. 2013) (affirming sum-

mary judgment on retaliation claim).

12

As these cases show, the Court’s ruling in this case

will impact officers on the front lines of public safety

in city streets, in remote villages, and at large public

events. These officers frequently encounter intoxicated

and verbally combative suspects, and they must make

split-second decisions in volatile circumstances. Expos-

ing officers to retaliation claims for arrests that were

supported by probable cause risks eroding their will-

ingness to make lawful arrests required to protect pub-

lic safety.

Il. Without a requirement to show that prob-

able cause was lacking, weak retaliatory-

arrest claims can easily survive summary

judgment.

The crux of most retaliatory-arrest claims will be

a dispute over whether the arrest was motivated by re-

taliatory animus. “Because an official’s state of mind is

easy to allege and hard to disprove,” Crawford-El, 523

U.S. at 584-85 (internal quotation marks omitted), an

officer cannot easily establish for summary judgment

that an arrest was not retaliatory.

The Bartlett decision shows just how easy it is for

weak re*»liatory-arrest claims to survive summary

judgment. The court reversed the grant of summary

judgment based solely on Bartlett’s uncorroborated as-

sertion that Trooper Nieves said something suggesting

retaliatory motive. Bartlett, 2017 WL 4712440 at *2.

Thus in the Ninth Circuit, a doubtful allegation about

an officer's subjective intent defeats summary

13

judgment — even though the existence of probable

cause to arrest for a crime as serious as assault

strongly suggests that retaliatory motive was not the

“but-for” cause for the arrest. Again, the Bartlett deci-

sion is not an outlier. In a recent case, summary judg-

ment was denied on a retaliatory-arrest claim even

though the plaintiff was convicted of the crime he was

arrested for, based solely on the plaintiff’s disputed as-

sertion that officers made statements indicating retal-

iatory motive. Mihailovici v. Snyder, No. 3:15-cv-01675

MO, 2017 WL 1508180, *5-6 (D. Or. Apr. 25, 2017).

Without the need to show the challenged arrest lacked

probable cause, plaintiffs can expose officers to the bur-

dens of trial on even the weakest retaliatory-arrest

claims.

Apparently aware of this problem, the Ninth Cir-

cuit has tried to temper its rejection of the probable-

cause element in order to “protect|| government offi-

cials from the disruption caused by unfounded claims.”

Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 901

(9th Cir. 2008). Because “[t)here is almost always a

weak inference of retaliation whenever a plaintiff and

a defendant have had previous negative interactions,”

the court has articulated a rule of thumb to guide the

district courts: cases with “very strong evidence of

probable cause and very weak evidence of a retaliatory

motive” should ordinarily result in summary judg-

ment. Id. (cited in Maidhof v. Celaya, 641 F. App’x 734,

735 (9th Cir. 2016); White, 503 F. App’x at 553).

But that approach offers inadequate protection

against meritless claims. The imprecise weighing it

14

requires will necessarily reflect the diverse perspec-

tives of individual judges about what evidence of prob-

able cause counts as “very strong,” what evidence of

retaliatory motive counts as “very weak,” and how to

balance those categories of evidence against one an-

other. E.g., compare Maidhof, 641 F. App’x at 736-37

(affirming summary judgment because there was prob-

able cause for arrest and “evidence of retaliatory intent

is weak”), with id. at 737 (Rawlinson, J., dissenting)

(finding sufficient “circumstantial evidence of retalia-

tion” to preclude summary judgment); compare White,

503 F. App’x at 553 (affirming summary judgment be-

cause evidence of retaliatory motive for pat-down

search was “weak”), with id. at 555 (Graber, J., dissent-

ing) (maintaining there was sufficient evidence for

fact-finder to conclude that pat-down search was moti-

vated by plaintiff’s insult). The standard invites incon-

sistent results, and thus provides only scattershot

protection against unfounded claims. Nor is it an effec-

tive screen for claims by unscrupulous plaintiffs, who

can defeat summary judgment by claiming the officer

made a damning statement, with no need to corrobo-

rate it.

In fact, relieving plaintiffs from the need to show

lack of probable cause makes retaliatory-arrest claims

uniquely easy to assert compared to other section 1983

claims against law enforcement. Probable cause is an

absolute bar to Fourth Amendment claims of false ar-

rest, regardless of the arresting officer's motivation,

Devenpeck v. Alford, 543 U.S. 146, 153 (2004), and an

absolute bar to claims of retaliatory prosecution as

15

well, Hartman, 547 U.S. at 265-66. And although prob-

able cause does not bar claims of discriminatory arrest

in violation of the Fourteenth Amendment, these

claims require a “demanding” objective showing: at

least some evidence that similarly situated people of

another class were treated differently. See United

States v. Armstrong, 517 U.S. 456, 465, 469 (1996)

(holding that claimant asserting discriminatory prose-

cution “must show that similarly situated individuals

of a different race were not prosecuted”); Farm Labor

Org. Comm. v. Ohio State Highway Patrol, 308 F.3d

523, 533-34 (6th Cir. 2002) (extending Armstrong rule

to law enforcement actions generally); Chavez v. Illi-

nois State Police, 251 F.3d 612, 636 (7th Cir. 2001) (ap-

plying Armstrong rule to claim of discriminatory stops,

detentions, and searches); United States v. Bell, 86 F.3d

820, 823 (8th Cir. 1996) (analyzing discriminatory ar-

rest claim under Armstrong framework); Richards v.

City of Los Angeles, 261 F. App’x 63, 65-66 (9th Cir.

2007) (characterizing claims of discriminatory inspec-

tions, raids, and arrests as “selective enforcement”

claim requiring plaintiff to show similarly situated

class). The need to show unequal treatment of simi-

larly situated persons makes it hard to allege, and easy

to disprove, unfounded claims of discriminatory arrest.

Not so for claims of retaliatory arrest. The ease of

asserting these claims, and the difficulty of defending

against them, justifies a rule that the plaintiff must

plead and prove the absence of probable cause for the

arrest.

16

Ill. Exposing officers to meritless retaliatory-

arrest claims risks undercutting their per-

formance and undermining public safety.

Police officers working a beat should not hesitate

when forced to make quick decisions about how to

protect the public and themselves. But permitting re-

taliatory-arrest claims to proceed even though the

challenged arrest was supported by probable cause

will place officers in the difficult position of weighing

public safety against the risk of personal liability.

The Bartlett case again offers a useful illustration

of this dilemma. Troopers Nieves and Weight were at-

tempting to investigate underage drinking at a remote

outdoor festival when they encountered Bartlett. Bart-

lett, 2016 WL 3702952 at *1. Bartlett not only inter-

fered with their investigation; he also appeared

intoxicated and aggressive. No. 16-35631, Dkt. 8-1 at

92, Dkt. 23 at 43. Because his conduct did not amount

to a major crime, the troopers could have used their

discretion not to arrest. And had thc y known that ar-

resting him would spiral into a trial on a retaliatory-

arrest claim, they might have declined to do so. Yet that

would have meant leaving a drunk, belligerent man at

a remote outdoor party with minors in the middle of

the night. That is not the kind of decision that society

or the courts should encourage officers to make. If the

Court rules that probable cause does not bar retalia-

tory-arrest claims, this dilemma is likely to arise in

countless routine encounters involving disorderly con-

duct, trespass, or other minor offenses that sometimes

pose a danger to public safety.

17

When it decided Hartman, the Court did not con-

sider the volume of retaliatory-prosecution litigation

overwhelming. Hartman, 547 U.S. at 259. But retalia-

tory-arrest claims are a different story. In the twenty-

five years preceding Hartman, the Court found fewer

than two dozen damages actions for retaliatory prose-

cution that had come before all the courts of appeals.

In contrast, more retaliatory-arrest claims have come

before the Ninth Circuit alone in just the eleven years

since Hartman was decided. Bartlett, 2017 WL

4712440 at *1; Vohra v. City of Placentia, 683 F. App’x

564, 567 (9th Cir. 2017); Reed v. Lieurance, 863 F.3d

1196, 1212 (9th Cir. 2017) (issuance of misdemeanor

citation without arrest); Sharp v. County of Orange,

871 F.3d 901, 919 (9th Cir. 2017); Maidhof, 641 F. App’x

at 735; Picray v. Duffitt, 652 F. App’x 497, 498 (9th Cir.

2016); Willes v. Linn County, 650 F. App’x 444, 444 (9th

Cir. 2016); Nichols v. City of Portland, 622 F. App’x 679,

679 (9th Cir. 2015); Adkins v. Limtiaco, 537 F. App’x

721, 722 (9th Cir. 2013); Gutierrez v. County of Los An-

geles, 545 F. App’x 701, 701 (9th Cir. 2013); Jackson v.

City of Pittsburg, 518 F. App’x 518, 520-21 (9th Cir.

2013); Martin v. Naval Criminal Investigative Serv.,

539 F. App’x 830, 831 (9th Cir. 2013); Ford, 706 F.3d at

1190; Tarahoui v. Brown, 539 F. App’x 734, 734 (9th Cir.

2013); White, 503 F. App’x at 553; Blomquist v. Town of

Marana, 501 F. App’x 657, 659 (9th Cir. 2012); Lacey v.

Maricopa County, 693 F.3d 896, 916-17 (9th Cir. 2012)

(en banc); Dirks v. Grasso, 449 F. App’x 589, 592 (9th

Cir. 2011); Glair v. City of Los Angeles, 437 F. App’x 581,

581 (9th Cir. 2011); [kei v. City and County of Honolulu,

18

441 F. App’x 493, 494 (9th Cir. 2011); Wilson v. City of

San Diego, 462 F. App’x 683, 683 (9th Cir. 2011); Ku-

banyi v. Covey, 391 F. App’x 620, 621 (9th Cir. 2010); Ra

El v. Crain, 399 F. App’x 180, 182 (9th Cir. 2010); Beck

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

Dietrich, 548 F.3d at 901; Scallion v. City of Hawthorne,

280 F. App’x 671, 673 (9th Cir. 2008); Tarr v. Maricopa

County, 256 F. App’x 71, 73-74 (9th Cir. 2007); Skoog v.

County of Clackamas, 469 F.3d 1221, 1235 (9th Cir.

2006).

The threat to police officers from unfounded retal-

iatory-arrest claims is real. To avoid deterring officers

from making objectively reasonable arrests that pro-

tect public safety, the Court should rule that a plaintiff

asserting such a claim must show that the arrest

lacked probable cause.

_

19

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted,

JAHNA LINDEMUTH

Attorney General!

State of Alaska

DARIO BORGHESAN*

Assistant Attorney General

ANNA R. JAY

Assistant Attorney General

1031 W. Fourth Ave.

Suite 200

Anchorage, AK 99501

(907) 269-5100

dario.borghesan@alaska. gov

*Counsel of Record