# Amicus Curiae Brief — Nieves v. Bartlett (No. 17-1174)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

No. 17-1174
IN THE

Supreme Court of the Hnited States

Luis A. NIEVES, et ai.,
Petitioners,
Vv.
RUSSELL P. BARTLETT,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF OF THE DISTRICT OF COLUMBIA
AND THE STATES OF COLORADO, IDAHO,
MAINE,

AMICI CURIAE IN SUPPORT OF PETITIONER

KARL A. RACINE

Attorney General for the
District of Columbia

LOREN L. ALIKHAN

Solicitor General
Counsel of Record

CAROLINE S. VAN ZILE

Deputy Solicitor General

CARL J. SCHIFFERLE

Senior Assistant Attorney General!

D.C. OFFICE OF THE
ATTORNEY GENERAL

441 4th Street, NW

Suite 630 South

Washington, D.C. 20001

(202) 727-6287

loren.alikhan@dc.gov

Counsel for Amicus Curiae
District of Columbia

(Additional Counsel Listed On Signature Page)

VALSON-EPES PRINTING CO., Inc. — (202)789-0096 — WasHiNGTon, D.C. 20002

|
QUESTION PRESENTED

In Hartman v. Moore, 547 U.S. 250 (2006), this Court
held that probable cause defeats a First Amendment
retaliatory-prosecution claim under 42 U.S.C. § 1983
as a matter of law. Does probable cause likewise
defeat a First Amendment retaliatory-arrest claim
under Section 1983?

sas

TABLE OF CONTENTS

I. The Ninth Circuit’s Rule Inhibits Effec-
tive Policing By Discouraging Justified
Arrests, Heightening The Peril Of Arrest
Situations, And Limiting The Ability Of
The Police To Respond To Community

A. Under the Ninth Circuit’s rule, nearly
all arrestees could sue—and likely
force a trial—by questioning the
officers’ subjective motivations ...........

B. A subjective test would discourage
officers from enforcing the law and
heighten the volatility of arrest
ED inccciicdcnitciscntictitadibeisninntednimmeaintes

oon & <

Il.

iv

TABLE OF CONTENTS—Continued

C. Reliance on other factors, such as
whether a law is commonly enforced,
is not an adequate substitute for
proving a lack of probable cause.........

States And Localities Have Effective

Mechanisms For Ensuring That Officers

Do Not Make Retaliatory Arrests ............

A. Administrative review of police
conduct provides an effective alter-

B. Additional protections exist through
limitations on the arrest power and
through policies on arrest alterna-

Page

13

18

18

23

v

TABLE OF AUTHORITIES
Cases Page(s)

Atwater v. City of Lago Vista,

ge | ee 12, 23, 24-25
Brown v. Entm’t Merchants Ass’n,

Be ee Se nicicnceessntsansascedsccnpencasece 6
Chicago v. Morales,

a 18
Crawford-El v. Britton,

4 SS 10-11, 12
Cty. of Riverside v. McLaughlin,

ee 11
Dahl v. Holley,

312 F.3d 1228 (11th Cir. 2002)................. 5
District of Columbia v. Wesby,

ee nctntirenicccnscsnesccsceccrase 13
Dukore v. District of Columbia,

799 F.3d 1137 (D.C. Cir. 2015)................. 8
Florence v. Bd. of Chosen Freeholders,

ES Ae 12,14
Harlow v. Fitzgerald,

ee TT ninsinnnncentncnnnsddunnnamsensuccenes 10, 11
Hartman v. Moore,

Re ie Se GP ccenccccsnccccecosczcvesosescscese 1
Holguin v. City of San Diego,

135 F. Supp. 3d 1151 (S.D. Cal. 2015) ..... 7
Horton v. California,

GF ee SP crnctcnennntensccsssesnsensceemnen 9

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Houston v. Hill,

I ITT cco ccscasscunindesnsnesentuncctnee 7
Joyce v. Crowder,

480 F. App’x 954 (11th Cir. 2012) ............ 8
Keenan v. Tejeda,

290 F.3d 252 (5th Cir. 2002)..................... 5
Kentucky v. King,

EE Et ctrenenacnansnsunnssessasssescces 9
Logsdon v. Hains,

492 F.3d 334 (6th Cir. 2007)..................... 8
Lozman v. City of Riviera Beach,

ae le Gy Be Ge Paccccccacessseceverecccseceees 12-13
McCabe v. Parker,

608 F.3d 1068 (8th Cir. 2010)................... 5
Mozzochi v. Borden,

959 F.2d 1174 (2d Cir. 1992) .................... 5
Pegg v. Herrnberger,

845 F.3d 112 (4th Cir. 2017)..................... 5
Reichle v. Howards,

Be IE necntsccssnsasestessestnsconesanes 15
Siegert v. Gilley,

EC 9-10
State v. Baccala,

163 A.3d 1 (Comm. 2017)............ccccccccccceeees 7
United States v. Alvarez,

Se Ge ecncnscnncenepcnccccesserenseness 6

vii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. O’Brien,

8 8
Virginia v. Moore,

553 U.S. 164 (2008).................000ecces0es 11, 23, 24
Wayte v. United States,

470 U.S. 598 (1985)...............0-cecccccceccceseees 7

Statutes, Regulations, and Rules

ee 1
Cal. Penal Code § 832.5(a) .................000000000 22
Cal. Penal Code § 837.2(e)(1) ............cccccceeeee 22
Conn. Gen. Stat. § 7-294bb ..................0000000 22
A, GO I cetenternsctcsctnnsinncsvnsesnsisnte 20
ae 20
EAS. Ge BB BERRI ccccccccscenscscsssnccscescensssess 20
AS, Ge ee ccneivccenccinitennancccsitvdintinicnins 20
D.C. Mun. Regs. tit. 6A, § 2104.1................. 20
D.C. Mun. Regs. tit. 6A, § 2199.1................. 20
L.A., Cal., Charter vol. I, § 571(b)4)............ 21
LA., Cal., Charter vol. I, § 573.................00+ 21
Me. Rev. Stat. tit. 25, § 2803-B.................... 23
Md. Code Ann., Pub. Safety § 3-519............ 23
N.J. Stat. § 40A:14-181 ..0.000.0.......ccceeeeeeeeeeeee 23
N.Y.C., N.Y., Rules tit. 38A, § 1-02(a)......... 21

N.Y.C., N.Y., Rules tit. 38A, § 1-23(d) ......... 21

ess

TABLE OF AUTHORITIES—Continued

Page(s)
N.Y.C., N.Y., Rules tit. 38A, § 1-46(f.......... 21
Be NN, Se EOD ccerennsesassscscsenssnsennecene 23
EE 24
, < ree 24
Vt. Stat. Ann. tit. 20, § 2402 ........................ 23

Other Authorities
Brief for Petitioner, Lozman v. City of
Riviera Beach, 138 S. Ct. 1945 (No. 17-
21), 2017 WL 6616986 (Dec. 22, 2017)..... 13, 14

Ee 16, 17
Cal. Dep’t of Justice, Arrests Reported from

2007-2016, https://openjustice.doj.ca.gov/

i cerstesnnnsssevemusensasnnnancesnmscanensse 14

Cal. Dep’t of Justice, Policy Governing
Enforcement (Jan. 2017).......................++- 22
Conn. Police Officer Standards & Training
Council, Mandatory Uniform Policy:
Complaints that Allege Misconduct by
Law Enforcement Agency Personnel (May
SN Se cntenernnneenebsecimenmmeemmstmenessmennene 22
D.C. Office of Police Complaints, Annual
Report 2017 (Oct. 31, 2017) .........c.c0-0-00-0- 20, 21

TABLE OF AUTHORITIES—Continued

Page(s)

Joseph De Angelis et al., Civilian Oversight

Federal Bureau of Investigation, Crime in
the United States 2016, https-//tinyur!l.
I cncseeneenenenaeee

Final Report of the President’s Task Force
on 21st Century Policing (2015) ...............

Int'l Ass’n of Chiefs of Police, Building
Trust Between the Police and the Citizens

} Community
Calif. L. Rev. 1513 (2002) .....................00+

L.A. Bd. of Police Comm'rs, Policies and
Authority Relative to the Inspector
General (approved Nov. 21, 2000),...........

L.A. Police Dep’t, Office of the Inspector

N.Y.C. Civilian Complaint Rev. Bd., Police
Discipline, https/Awww I.nyc.gov/site/ccr

19

14

16

19

16

22

TABLE OF AUTHORITIES—Continued

Page(s)

N.Y.C. Civilian Complaint Rev. Bd., Semi-
Annual Report, Jan.-June 2017 (Dec. 6,
Fe escnecsmmemntansnusmemenesmmnen 21

Nat'l Conference of State Legislatures, Cita-
tion in Lieu of Arrest (updated Oct. 23,
2017), https-//tinyurl.com/yd9wsf9d... 23, 24, 25
Office of Community Oriented Policing

The President's Task Force on 21st Century
Policing Implementation Guide (2015) ..... 20
Edward Sheehy et al., Greenville Police to
Issue Citations for Small Crimes Instead
of Arrests, WITN.com News (Oct. 9,
2017), https-//tinyurl.com/y9ow3ll9.......... 24

Tom R. Tyler & Jeffrey Fagan, Legitimacy
and Cooperation: Why Do People Help
Police Fight Crime in Their Communities?,
6 Ohio St. J. Crim. L. 231 (2008).............. 19

INTEREST OF AMICI CURIAE

The ability to enact, administer, and enforce criminal!
laws is at the heart of a State’s sovereignty. Most
crimes fall under state rather than federal jurisdic-
tion, making law enforcement a primary function for
state and local governments. In protecting the safety
of their residents, States have a vital interest in ensur-
ing that law enforcement officers can arrest based on
probable cause. Where a State has authorized arrest
for a crime, and that arrest is based on probable cause,
arresting officers should not fear that they will be
subject to liability for a First Amendment retaliatory-
arrest claim. State law enforcement would be impaired
if officers were deterred from making arrests by the
prospect of defending their subjective motivations
years later in a subsequent civil lawsuit.

The Amici States urge this Court to reverse the
court of appeals’ decision and, consistent with its
decision in Hartman v. Moore, 547 U.S. 250 (2006),
determine that the absence of probable cause is an
element of a First Amendment retaliatery-arrest claim.

SUMMARY OF ARGUMENT
As petitioner explains, it follows from this Court's
precedent and common-law analogues that 42 U.S.C.
§ 1983 requires a plaintiff to show a lack of probable
cause to recover damages for an arrest allegedly in
violation of the First Amendment. The Amici States
write to highlight two additional points.

1. The Ninth Circuit’s contrary rule creates immense
practical difficulties for law enforcement. If a litigant
need not prove the absence of probable cause, virtually
every arrest would give rise to a potentially viable
retaliatory-arrest lawsuit for damages. It would be

2

easy for any arrestee to claim that he engaged in
protected speech contemporaneous with his arrest and
thus that the arrest was in retaliation for the speech.
Suspects routinely speak to police during encounters,
make other reported or overheard statements, and
display speech on their clothing, possessions, or vehicles.
Unless the speech itself constitutes a crime, virtually
all of it would be protected under the Ninth Circuit’s
rule.

It would similarly be easy for an arrestee to allege
that the arrest was motivated, in part, by the officer’s
disagreement with that speech. Much of an arrestee’s
speech might be critical and outspoken. Suspects
will naturally object to police inquiry, protest their
innocence, or communicate their displeasure in other
ways. This can turn hostile. On a daily basis, police
are required to withstand insults and verbal abuse.
Arrestees may also choose to break a law either as a
chosen means of protest or to state their objections to
the law itself, and may therefore argue that their
unlawful conduct was “expressive.” Additionally, a
suspect's speech may be inculpatory. It may suggest
the requisite state of mind, a motive, or other facts
relevant to guilt. In all those situations, an arrestee
could readily claim that the speech was a motivating
factor in his arrest.

Because retaliation would be so easy to claim, a
retaliatory-arrest standard that lacks the absence of
probable cause as an element would discourage
of an objective, probable-cause test, arresting officers
would fear a suit that likely could not be decided
without burdensome discovery and a trial. They
would also correctly foresee a real threat of liability
inherent in a jury trying to reconstruct their subjective

3

motivations. Because police often must make arrest
decisions quickly and under difficult and tense
circumstances, the threat of such litigation would
cause them to hesitate to arrest, even when supported
by probable cause and the need to protect the public.
Adopting the Ninth Circuit’s rule would also make

police encounters more dangerous by encouraging
hostility toward officers as a tactic to avoid arrest.

It is unclear how, under the Ninth Circuit’s rule,
a court or jury could objectively evaluate whether
an arrestee’s speech or unlawful conduct caused
her arrest. Some have suggested focusing liability
on whether the officer, in his defense, can show that
police generally arrest for the relevant offense. But an
officer cannot realistically know, on the scene, whether
an offense is one that is or is not commonly enforced.
Any arrest, then, would be made under a cloud of
potential liability, at the officer’s own peril. Put simply,
there is no practical method for making a determi-
nation about the “frequency” of arrests for a particular
crime, even for purposes of the officer’s defense at trial.

Moreover, a test focusing on what some hypothetical,
average officer would have done in the same circum-
stance would impair the ability of police to address
localized community problems. Factoring liability on
whether police generally arrest for an offense would
gradually pressure police, as suits are litigated, to
categorize each offense as either one for which they
always arrest or never arrest. Among other problems,
this frustrates the application of community policing,
which encourages police to act with greater discretion,
continually using input from the community on what
problems warrant police resources and what responses
are effective.

4

2. The Ninth Circuit’s rule is also unnecessary to
protect First Amendment interests. States and locali-
ties can take effective remedial action in response to
citizen complaints of police misbehavior, including
alleged retaliation. Law enforcement agencies have
an important duty, as well as a direct interest, in
ensuring that citizen complaints against officers are
thoroughly investigated and appropriate disciplinary
action is taken. Such internal review is a vital compo-
nent of managing a police department and maintaining
the public trust upon which law enforcement depends.
State and local governments can flexibly adopt solu-
tions that promote law enforcement accountability
and effectiveness.

Additionally, many forms of external review of
citizen complaints have been implemented throughout
the nation. In many cities, citizen review boards with
subpoena powers directly investigate complaints of
officer misconduct and make findings and recommen-
agencies that closely review a police department’s
handling of its own internal affairs investigations.
Though the mechanisms may vary, each locality can
select the administrative process that best addresses
its own situation. State governments have their own
oversight role, too, and can enact legislation and
policies to ensure that citizen complaints are appropri-
ately handled.

States may also afford additional protections against
retaliatory arrest by limiting the arrest power and
establishing alternatives to arrest. States generally
prohibit warrantless arrests for misdemeanors unless
the crime is committed in the officer’s presence. States
have also circumscribed the power to arrest by
providing for release on citation or summons, in lieu of

5

a full custodial arrest, for certain crimes or under
certain circumstances. The policies of local govern-
ments and police departments may establish additional
standards and guidelines for citation in lieu of arrest,
thus limiting the potential of retaliatory arrests for
such crimes. First Amendment interests are important,
but the Ninth Circuit’s highly flawed and impractical
rule is not the only option for protecting them.

ARGUMENT
I. The Ninth Circuit’s Rule Inhibits Effective
Policing By Discouraging Justified Arrests,
Heightening The Peril Of Arrest Situations,
And Limiting The Ability Of The Police To
Respond To Community Problems.

As the Second, Fourth, Fifth, Eighth, and Eleventh
Circuits have correctly recognized, the existence of
probable cause defeats a claim for retaliatory arrest.
Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992)
(if “probable cause to arrest exist|s] independent of the
defendants’ motive,” a retaliatory-arrest claim fails);
Pegg v. Herrnberger, 845 F.3d 112, 119 (4th Cir. 2017),
(where officer had probable cause to arrest plaintiff,
“his arrest was not retaliatory”); Keenan v. Tejeda, 290
F.3d 252, 261-62 (5th Cir. 2002) (the “objectives of law
enforcement take primacy over the citizen’s right to
avoid retaliation”); McCabe v. Parker, 608 F.3d 1068,
1075 (8th Cir. 2010) (“Lack of probable cause is a
necessary element” of a First Amendment retaliatory-
arrest claim); Dahil v. Holley, 312 F.3d 1228, 1236
(11th Cir. 2002) (“the existence of probable cause to
arrest” bars a First Amendment retaliation claim).
That conclusion makes sense as a legal matter, see Pet.
Br. 16-41, but it also furthers important public safety
goals. If officers find probable cause to arrest under
the totality of the circumstances, they should be

6

entitled to make that arrest—and thereby protect
public safety—without fear that they will later be
subject to a suit challenging their subjective motiva-
tions. The threat of such suits would not only make
officers’ already difficult and dangerous jobs even
more harrowing, but would also hinder law enforce-
ment agencies from taking custody of dangerous
offenders and implementing effective community polic-
ing.

A. Under the Ninth Circuit’s rule, nearly
all arrestees could sue—and likely force
a trial—by questioning the officers’
subjective motivations.
1. Retaliatory arrest could easily be claimed in
most instances given the prevalence of
suspects’ protected speech.

Under the Ninth Circuit’s rule, an arrestee may
subject his arresting officers to a burdensome lawsuit
simply by alleging a retaliatory motive. Such claims
will be easy to advance because an arrestee will almost
always be able to identify protected speech contem-
poraneous with his arrest. There is a “vast realm” of
protected speech, and content-based restrictions on
protected speech are limited to just a few traditional
categories (such as fraud, fighting words, and true
threats). United States v. Alvarez, 567 U.S. 709, 717-
18 (2012) (plurality op.); see also Brown v. Entm’t
Merchants Ass’n, 564 U.S. 786, 790-91 (2011) (outlin-
ing the exceptions “in a few limited areas” to the rule
that speech is generally protected). As a result, in
virtually every case where an arrestee speaks at all,
she will have engaged in protected speech.

Suspects rarely remain completely silent during a
police encounter. Those who have broken the law are

7

not happy to be apprehended and often speak critically
of police. Hoping to frustrate the police investigation
and ultimately avoid arrest, they routinely protest
their innocence to officers or criticize the propriety of
police action. See, e.g., Holguin v. City of San Diego,
135 F. Supp. 3d 1151, 1162-63 (S.D. Cal. 2015)
(plaintiff, arrested for being intoxicated and uncoop-
erative, alleged that his arrest was in retaliation for
asking police to “take it easy”). They may also engage
in speech that is highly offensive but nevertheless
protected, such as by hurling insults and profanities
at police officers. Indeed, this Court has suggested
that additional First Amendment protection for such
speech may be warranted in part because police offic-
ers are trained not to respond to such abuse. Houston
v. Hill, 482 U.S. 451, 461-62 (1987). Most courts agree
and hold police to a higher standard. See, e.g., State v.
Baccala, 163 A.3d 1, 9 (Conn. 2017) (citing cases).

Perversely, if the Court were to adopt the Ninth
Circuit’s rule, a suspect’s insults and profanities may
well suggest—especially to lay jurors—that officers
responded in a retaliatory manner. After all, such
words are designed to provoke, and if spoken to an
average citizen would ordinarily prompt an angry
and perhaps violent response. Even a suspect’s more
tempered criticism or disapproval of the officers could
easily be alleged to have motivated an arrest.

An arrestee could also readily allege retaliatory
motive when his lawbreaking is directly tied to
purported expressive conduct or protest. Persons may
break a law to express disagreement with the law
itself or related governmental policy. See Wayte v.

United States, 470 U.S. 598, 600-01 & n2 (1985)
(letters explaining refusal to register with Selective
Service). Or they may violate the law simply to

8

express themselves in a manner of their own choosing.
For example, protestors may encamp unlawfully on
public space, using such continued occupation to expound
their message. See Dukore v. District of Columbia, 799
F.3d 1137, 1138-39 (D.C. Cir. 2015). Protestors may
also trespass on the private property of entities whose
practices or views they oppose. See, e.g., Logsdon v.
Hains, 492 F.3d 334, 337-38 (6th Cir. 2007) (abortion
protestors); Joyce v. Crowder, 480 F. App’x 954, 955
(11th Cir. 2012) (environmental activists). Because
of the close connection between the offense and the
expression of protest, an arrestee could well claim
retaliation in these circumstances—thereby deterring
officers from making legitimate and often necessary
arrests for trespassing or disorderly conduct within
the encampment. See, e.g., Dukore, 799 F.3d at 1139.

Even speech that provides evidence of criminal
activity may be protected. A suspect's own speech
might place him at the scene of the crime, reveal a
motive, or indicate that he acted with the requisite
intent. But under the Ninth Circuit’s standard, an
officer who relies on such inculpatory statements
would then become subject to a retaliatory-arrest
claim. After all, the content of the arrestee’s speech
would admittedly be a motivating factor in such an
arrest. This would apply even in the extreme
circumstance where a suspect is confessing to a crime:
For example, if a person is arrested after stating that
he has burned his draft card because of his beliefs,
then he could claim that his arrest was retaliatory.
E.g., United States v. O’Brien, 391 U.S. 367 (1968).
To avoid liability in such a circumstance, the officer
would have to show something more than probable
cause—such as, for example, that police generally
make arrests when they observe evidence of the alleged
crime. It is not clear, however, how an arresting officer

9

could possibly prove this, and even if he could, there is
no reason why an officer who arrests a suspect based
on the suspect’s own inculpatory statements should be
forced to litigate in that circumstance.

The risk of a subsequent suit for retaliatory arrest
exists even in the rare case where the suspect says
nothing to the officer directly. Officers often overhear,
or receive reports of, statements made by the suspect.
And even where the suspect himself is entirely silent,
he could later claim that something as simple as the
bumper sticker on his car or a slogan on his t-shirt was
protected speech giving rise to the arrest.

2. Adopting the Ninth Circuit’s rule would
effectively transform the standard for arrest-
ing officers’ liability, including qualified
immunity, from an objective test into a
subjective one.

Because a showing of protected speech poses little
obstacle, a test for retaliatory-arrest claims that fails
to incorporate probable cause as an element would
turn on the subjective motivations of the arresting
officers. It would thereby supplant the objective stand-
ards that this Court has firmly established for
assessing the constitutionality of an arrest. “[T)his
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.” Kentucky v. King, 563 U.S. 452, 464 (2011)
(quoting Horton v. California, 496 U.S. 128, 138 (1990)).

Qualified immunity would provide arresting officers
little protection if it too turned on their subjective
motivations. Qualified immunity is designed “to spare
a defendant not only unwarranted liability, but

10

unwarranted demands customarily imposed upon
those defending a long drawn out lawsuit.” Siegert
v. Gilley, 500 U.S. 226, 232 (1991). As this Court
has established, an objective standard for assessing
officers’ actions is needed to ensure that burdensome
lawsuits do not occupy an unwarranted amount of
law enforcement’s time and attention. See Harlow v.
Fitzgerald, 457 U.S. 800, 815-19 (1982). That is because
“|jludicial inquiry into subjective motivation ... may
entail broad-ranging discovery and the deposing of
numerous persons, including an official’s professional
colleagues.” Jd. at 817. After extensive discovery,
arresting officers would then likely have to undergo a
trial, since “questions of subjective intent so rarely can
be decided by summary judgment.” Jd. at 816. As the
Harlow Court concluded, basing qualified immunity
on an officer’s subjective motivations “has proved
incompatible with [this Court’s] admonition . . . that
insubstantial claims should not proceed to trial.” Id.
at 815-16.

Under the Ninth Circuit's rule, an officer with
retaliatory motive would not be entitled to qualified
immunity even if the arrest were objectively reason-
able, i.e., supported by probable cause. To be sure, if
it were unclear whether the speech was protected,
qualified immunity would apply. Otherwise, though,
the retaliatory motive establishing a First Amendment
violation might defeat qualified immunity, as plaintiffs
will no doubt argue, and thus qualified immunity
would provide officers no added protection.

If needed, this Court could (and should) hold that,
to the contrary, the existence of probable cause, or
arguable probable cause, entitles an officer to qualified
immunity on a First Amendment retaliatory-arrest
claim. See Crawford-El v. Britton, 523 U.S. 574, 612

11

(1998) (Scalia, J., dissenting). Such a holding would
preserve that doctrine’s protections for official acts
that are objectively reasonable, whatever the subjec-
tive intent. But, especially without such an extension
of qualified immunity, the Ninth Circuit’s rule
would institute a profound and unwarranted shift in
assessing officers’ liability for arrests. It would replace
well-established objective standards with an open-
ended inquiry into an officer’s subjective motivations.

B. A subjective test would discourage officers
from enforcing the law and heighten the
volatility of arrest situations.

The resulting litigation over officers’ subjective
motivations for arrests would impose significant socie-
tal costs. These would be beyond just the “general
costs of subjecting government officials to the risks of
trial,” such as the “distraction of officials from their
governmental duties.” Harlow, 457 U.S. at 816. First,
adopting the Ninth Circuit’s standard would have a
particularly adverse effect on the ability of states to
protect their citizens from crime. “States have a
strong interest in protecting public safety by taking
into custody those persons who are reasonably suspected
of having engaged in criminal activity, even where
there has been no opportunity for a prior judicial
determination of probable cause.” Cty. of Riverside v.
McLaughlin, 500 U.S. 44, 52 (1991). Among its other
purposes, a custodial arrest “ensures that a suspect
appears to answer charges and does not continue a
crime.” Virginia v. Moore, 553 U.S. 164, 173 (2008).

The threat of damages claims based on an officer's
subjective motivations would dissuade officers from
making legitimate arrests. Officers who acted without
retaliatory animus would still have reason to fear not
only the burdens of litigation, but also the potential

12

liability that could result. They would be aware that
a retaliatory motive is “easy to allege and hard to
disprove.” Crawford-El, 623 U.S. at 5684-85. They also
often must act “on the spur (and in the heat) of the
moment.” Atwater v. City of Lago Vista, 632 US. 318,
347 (2001). Yet an officer would undoubtedly hesitate

on ita own reconstructed view of his thought processes.
Officers would thus be incentivized to forgo arrest
even when such action is appropriate to secure public
safety. See Florence v. Bd. of Chosen Freeholders, 566
U.S. 318, 337-38 (2012) (explaining rejection of
proposed rule for warrantless arrests because “the risk
of violating the Constitution would have discouraged
lofficers| from arresting criminals in any questionable

circumstances”).
Additionally, police encounters with suspects would
become more . Criminals would learn that

confrontational speech could be particularly effective
in forestalling arrest because of its added value for a
potential lawsuit and the deterrent effect that would
have on all but the most resolute officers. Indeed, from
the lawbreaker’s perspective, the more confrontational!

hostility could turn violent. Potential arrest situations
are already tense, uncertain, and subject to sudden
escalation. Adding a further element of provocation
into such a fraught situation would increase the risk
of harm to all involved.

As this Court acknowledged in Lozman v. City of
Riviera Beach, 138 8. Ct. 1945 (2018), “liln deciding
whether to arrest, police officers often make split-second

13

judgments.” /d. at 1953. And “(the content of the
suspect's speech might be a consideration in
circumstances where the officer must decide whether
the suspect is ready to cooperate, or, on the other hand,
whether he may present a continuing threat to
interests that the law must protect.” Id. (citing
District of Columbia v. Weaby, 138 8. Ct. 577, 587
(2018) (“suspect’s untruthful and evasive answers to

could support probable cause”)).

these cases creates a risk that the courts will be
flooded with dubious retaliatory arrest suits,” absent
the requirement that a plaintiff allege a lack of
probable cause. /d. And the prospect of a flood of suits
will no doubt have a strong deterrent effect on officers
navigating already-fraught pre-arrest encounters with
dangerous suspects. For those reasons, a bright-line
rule incorporating lack of probable cause as an
element of a retaliatory-arrest claim is necessary.

Br.”). But such a

14

a law is generally enforced is not a test that an officer
can apply on the scene, especially in the brief time
available to decide whether to arrest. See Florence,
566 U.S. at 338 (Officers who interact with those
suspected of violating the law have an essential
interest in readily admiaistrable rules.” (internal
quotation marks omitted)).

Under that standard, some plaintiffs have opined
that where a “serious crime” has been committed there
will be no liability, since presumably police arrest for
such crimes virtually every time they can. Lozman Br.
35-36. But this does little, if anything, to ease an
officer's predicament. Only an estimated 5% of arrests
are for violent felonies (murder and nonnegligent

States 2016, https//tinyurl.com/yatbcyox (last visited
Aug. 24, 2018). Most arrests are presumably for misde-
meanors. See id.; Cal. Dep't of Justice, Arrests Reported
from 2007-2016, https//openjustice.doj.ca.gov/20 16/ar
rests (reporting twice as many misdemeanor arrests
as felony arrests in California).

Not only would a rule based on the frequency of
arrests for particular crimes be impossible for an
officer to apply in the field, it would be very difficult
for him to meet in his own defense at trial. Identifying
a workable, meaningful measure of how commonly a
law is enforced through arrest is a tall order. The
requisite statistics for any such measure may not be
generally available. Beyond those insurmountable
obstacles, a stream of other complications would arise
in trying to measure whether police generally arrest
for an offense. Is the relevant geographic pool
nationwide, or by state, police department, or police
district? How narrowly or broadly should the relevant

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16

outdated view of policework: one that is basically
reactive, waiting for a crime to be reported or observed
and then responding in some automatic fashion based
on the seriousness of the offense under the criminal!
code. See Alafair Burke, Policing, Protestors, and
Discretion, 40 Fordham Urb. L.J. 999, 1009-10 (2013);
see generally Dan M. Kahan, Reciprocity, Collective
Action, and Community Policing, 90 Calif. L. Rev.
1513 (2002) (contrasting community policing strate-
gies with the more reactive, traditional model); Debra
Livingston, Police Discretion and the Quality of Life
in Public Places: Courts, Communities, and the
New Policing, 97 Colum. L. Rev. 561 (1997) (describing
community and problem-oriented policing).

By contrast, community-oriented policing emphasizes
that “|llaw enforcement agencies should work with
community residents to identify problems and collabo
rate on implementing solutions that produce meaningful
results for the community.” Final Report of the
President's Task Force on 21st Century Policing 45
(2015), - yo theiacp.org/Portala/O/taskforce_fin

Community Oriented Policing Servs., US. Dep't of
Justice, Community Policing Defined 5-6 (2014),
https//tinyurl.com/y7gows48. It also envisions contin-
ually identifying and prioritizing problems, designing
responses, and evaluating their effectiveness. Id. at
10-12.

The mistaken premise of a frequency-of-arrest-
based approach is that certain offenses are too minor,
or result too infrequently in arrest, such that any

17

arrest for those offenses would be inherently suspect.
Far from it. Sometimes heightened enforcement of
certain “minor” criminal laws can be quite important
to a community. “|T|he narrow focus of the past on the
seeming triviality of incidents of minor disorder
ignores the communal harms that can be visited upon
a neighborhood when these incidents multiply into a
neighborhood problem.” Livingston, supra, at 591.
“{I]n community policing, police often exercise their
discretion by addressing low-level crimes that might
not warrant attention in comparison to more serious
crimes, but which the community views as detrimental!
to their quality of life.” Burke, supra, at 1010-11.
Potential community concerns are manifold and could
include, as just a few examples, late-night noise and
disorderly conduct, trespassing, graffiti, illegal
dumping, or package theft.

At the same time, a community-oriented approach
encourages police “to think innovatively” and “view
making arrests as only one of a wide array of potential
responses.” Community Policing Defined, supra, at
10. By seeking the community's input as to both
problems and responses, “community policing tends to
be extremely localized.” Burke, supra, at 1011. Any
demand that arresting officers show that police
generally arrest for the offense would ignore the
dynamic nature of community policing and undercut
ita application. See Livingston, supra, at 650-70

tools

in the era of community policing than judicial review).

18
Il. States And Localities Have Effective

Mechanisms For Ensuring That Officers Do

Not Make Retaliatory Arrests.

Allowing a retaliatory-arrest claim to proceed
despite the existence of probable cause is especially
unwarranted given the comprehensive procedures
that state and local jurisdictions have developed to
address police misconduct and control the power of
arrest. Those safeguards can ably protect against
retaliatory arrests without eliminating the objective,
probable-cause standard for an arrest’s constitutional-
ity and opening the floodgates to damages suits. State
and local governments are better situated to fashion
flexible remedies that balance effective law enforce-
ment with proper restraints on police officers and
redress for their misdeeds.

A. Administrative review of police conduct

State and local jurisdictions are capable of handling
citizen complaints against officers for improper con-
duct, including retaliatory arrests. Of course, judicial
safeguards will always remain, such as when an arrest
is made without probable cause or where criminal
laws lack “minimal guidelines to govern law enforce-
ment.” Chicago v. Morales, 627 U.S. 41, 60 (1999). But
regardless of the potential for civil liability, officers
who arrest or take other actions for improper reasons
are subject to disciplinary action. Both internal and
external administrative processes exist throughout
the nation to provide an efficient and effective
response to complaints against officers who violate the
law or local policies. This provides a valuable check
against retaliatory arrests.

19

Law enforcement agencies, including through internal
affairs units, receive and resolve citizen complaints as
an important part of their law enforcement functions.
There is widespread recognition among law enforce-
ment that holding officers accountable for their actions
is essential to maintain the public legitimacy that
police need to be effective. Int’l Ass’n of Chiefs of
Police, Building Trust Between the Police and the
Citizens They Serve 5-7 (2009) (“Building Trust”),
https-//ric-zai-inc.com/Publications/cops-p 170-pub. pdf,
see also Tom R. Tyler & Jeffrey Fagan, Legitimacy and
Cooperation: Why Do People Help Police Fight Crime
in Their Communities? , 6 Ohio St. J. Crim. L. 231, 233-
38 (2008) (citing procedural fairness as a source of
police legitimacy, and legitimacy as a major factor in
the success of law enforcement). Indeed, such public
accountability is another component of community-
oriented policing. Building Trust, supra, at 5-7.
Citizen complaints also assist a police department in
supervising and managing its officers. Those com-
plaints not only help identify officers who should be
monitored more closely, disciplined, or removed for
misconduct, but also reveal areas where better train-
ing or enhanced supervision is needed. In short, police
departments have an interest as well as a duty in
appropriately investigating citizen complaints.

Citizen review boards, or other types of external
review, are another mechanism to address citizen
complaints. “[Clivilian oversight has been increas-
ingly institutionalized as a regular feature of policing
in cities and counties across the U.S.” Joseph De
Angelis et al., Civilian Oversight of Law Enforcement:
Assessing the Evidence 49 (2016), https://inyurl.
com/y94aelhc (identifying “more than 140 civilian
oversight agencies, with almost all large cities having
some sort of civilian oversight”). There is a wide range

20

of civilian oversight—from “limited authority to
review| | and makle|] recommendations to boards that
have investigative and subpoena powers”—and each
community may consider its own form of civilian
oversight that meets its needs. The President’s Task
Force on 21st Century Policing Implementation Guide
7 (2015), https-//tinyurl.com/ycznok28. Among its
features, civilian oversight can provide independent
review of citizen complaints.

In the District of Columbia, for example, a citizen
may file a complaint with the independent Office of
Police Complaints, which is overseen by a publicly
appointed board. D.C. Code §$§ 5-1104, 5-1105. The
Office of Police Complaints investigates complaints
of harassment (among other types of complaints),
which broadly includes arrests in violation of the law
or internal police guidelines. D.C. Mun. Regs. tit. 6A,
§§ 2104.1, 2199.1. It has the power to subpoena
witnesses and documents. D.C. Code § 5-1111(c).
The Office of Police Complaints even has direct and
immediate access to the videos from body-worn
cameras that all D.C. Metropolitan Police Department
patrol officers now use. D.C. Office of Police Complaints,
Annual Report 2017, at 18-19 (Oct. 31, 2017), https://
tinyurl.com/ycvouesc. If the Office sustains a complaint,
it refers the matter to the Metropolitan Police Depart-
ment to recommend, and the police chief to decide, the
imposition of discipline. D.C. Code § 5-1112. Generally,
the police chief may not reject the merits determination
of the Office of Police Complaints. Id. § 5-1112(e), (g).

Other cities have similar review boards that investi-
gate citizen complaints against police officers. In New
York City, an independent Civilian Complaint Review
Board with subpoena power investigates several
types of complaints—including complaints of abuse of

21

authority—and makes merits findings. N.Y.C., N.Y.,
Rules tit. 38A, §§ 1-02(a), 1-23(d). If it substantiates
the allegations, the Board recommends a type of
discipline and, in the most serious cases, can prosecute
disciplinary charges against the officer at an admin-
istrative trial. See N.Y.C. Civilian Complaint Rev.
Bd., Police Discipline, https://www 1 .nyc.gov/site/ccrb/
prosecution/police-discipline.page (last visited Aug. 2A,
2018). If the police commissioner intends to impose
discipline at a level below that recommended by the
board or administrative tribunal, the commissioner
must provide a detailed explanation of the reasons and
allow the board an opportunity to respond. N.Y.C.,
N.Y., Rules tit. 38A, § 1-46(f.”

External review can take other forms, such as
review of a department’s internal affairs investiga-
tions. For example, the Los Angeles Police Department
has an independent inspector general, who is selected
by a civilian Board of Police Commissioners. L.A.,
Cal., Charter vol. I, § 571(bX4). The inspector general's
office oversees the police department’s handling of
complaints of police misconduct. L.A., Cal., Charter
vol. I, § 573. It receives copies of every complaint filed,

* These civilian review agencies in the District of Columbia and
New York City regularly report on complaint dispositions,
including discipline and other remedial actions. See D.C. Office
of Police Complaints, Annual Report 2017, supra, at 32, https://
tinyurl.com/ycvouesc; N.Y.C. Civilian Complaint Rev. Bd., Semi-
Annual Report, Jan.-June 2017, at 25-31 (Dec. 6, 2017), https://
tinyurl.com/yc7wijjcz. Of course, disciplinary action is imposed in
many other instances directly through police departments. Civilian
review agencies also attempt to resolve complaints through medi-
ation, which is held if both parties agree and can be very effective.
Annual Report 2017, supra, at 22-23; Semi-Annual Report, Jan.-
June 2017, supra, at 32-36. As the statistics show, civilian
complaints produce meaningful outcomes, not empty processes.

22

audits selected investigations, and conducts systemic
reviews of the disciplinary system. See L.A. Police
Dep’t, Office of the Inspector General, http://www.
lapdonline.org/police_commission/content_basic_view/
1076 (last visited Aug. 24, 2018). It also has subpoena
power to conduct its own investigations. L.A. Bd. of
Police Comm’rs, Policies and Authority Relative to the
Inspector General § VII (approved Nov. 21, 2000),
https-//tinyurl.com/y7dab2vd.

Moreover, through legislation and policymaking,
states can provide oversight of local citizen complaint
processes. See, e.g., Cal. Penal Code § 832.5(a) (requir-
ing each police department to establish and publicize
its procedure to investigate civilian complaints);
id. § 837.2(e)(1) (requiring that the complainant
receive timely, written notification of the complaint’s
disposition); Cal. Dep’t of Justice, Policy Governing
Citizen Complaints Against Law Enforcement (Jan.
2017), https//Atinyurl.com/ycqvhuy?2 (establishing that
the Attorney General will review citizen complaints
against local law enforcement agencies for possib!e
investigation after exhaustion of local processes).

Some states have also directed that commissions
develop detailed standards that law enforcement agen-
cies must implement to investigate citizen complaints.
In Connecticut, as specified by statute, those stand-
ards address issues such as the manner of acceptance
of complaints, investigation protocols, and the docu-
mentation of the receipt of complaints and their
dispositions. See Conn. Gen. Stat. § 7-294bb;
Conn. Police Officer Standards & Training Council,
Mandatory Uniform Policy: Complaints that Allege
Misconduct by Law Enforcement Agency Personnel
(May 14, 2015), https://tinyurl.com/y93qdw3y. Other

23

states have similar statutes. See Me. Rev. Stat. tit. 25,
§ 2803-B; Md. Code Ann., Pub. Safety § 3-519; N.J.
Stat. § 40A:14-181; Vt. Stat. Ann. tit. 20, § 2402; see
also R.1. Gen. Laws § 21.2-8.

Regardless of the particular mechanism in each
jurisdiction, administrative processes are available to
thoroughly investigate complaints of retaliatory arrest
a damages remedy unnecessary for deterrence and
retribution.

B. Additional protections exist through
limitations on the arrest power and
through policies on arrest alternatives.

To ensure that the power of arrest is used
appropriately, states may also limit officers’ authority
to conduct a warrantless arrest. States generally
preclude arrest without a warrant for misdemeanors
committed outside of an officer's presence. See
Atwater, 532 U.S. at 355-60 (listing statutes). Man
states have also chosen “more restrictive safeguards
through statutes limiting warrantless arrest for minor
offenses.” Jd. at 352. Such safeguards include
provision for release on a citation or summons, with a
promise to appear later to answer the charge, in lieu
of a full custodial arrest. By statute or court rule,
almost all states provide for citation release for some
misdemeanors (and occasionally even felonies). Nat’
Conference of State Legislatures, Citation in Lieu of
Arrest (updated Oct. 23, 2017), https//tinyurl.com/
yd9wsf9d (providing summary chart of state laws).

Twenty-four states create at least “a presumption to
issue citations for certain crimes or under certain
circumstances.” Jd. For example, this Court’s decision
in Moore arose because of a Virginia statute that

24

generally directs officers to issue citations for most
misdemeanor traffic offenses. 553 U.S. at 167; see Va.
Code § 46.2-936. Another Virginia statute generally
requires citations for most misdemeanors that are not
punishable by a jail sentence. Va. Code § 19.2-74.
These and other similar state statutes typically have
exceptions permitting a custodial arrest, such as
where there are reasonable grounds to believe that the
person will not appear to answer the citation, will
continue the offense, or poses a danger to persons or
property. Citation in Lieu of Arrest, supra.

Where state law might not create a presumption or
otherwise establish guidelines for citation release,
localities may set their own policies. For example,
New York City officials announced that police will
issue summonses and “no longer arrest individuals
who commit [low-level] offenses—such as littering,
public consumption of alcohol, or taking up two seats
on the subway—unless there is a demonstrated public
safety reason to do so.” Press Release, District
Attorney Vance, Commissioner Bratton, Mayor De
Blasio Announce New Structural Changes to Criminal
Summonses Issued in Manhattan (Mar. 1, 2016),
https-/Ainyurl.com/ybcwe806. Other local govern-
ments have taken similar measures. See, e.g., Edward
Sheehy et al., Greenville Police to Issue Citations for
Small Crimes Instead of Arrests, WITN.com News
(Oct. 9, 2017), https://tinyurl.com/y9ow3ll9. While
discretionary determinations about public safety will
still likely be involved in the decision whether to issue
a citation in lieu of arrest, guidelines and policies can
ensure that those determinations are based on only
proper considerations.

As this Court has recognized, “it is in the interest of
the police to limit petty-offense arrests, which carry

25

costs that are simply too great to incur without good
reason.” Atwater, 532 U.S. at 352. States too recog-
nize those costs and have fashioned laws and policies
to achieve an appropriate balance of interests. Citation
in Lieu of Arrest, supra. The arrest limitations
adopted by states and localities further reduce any
potential for retaliatory arrests.

CONCLUSION

This Court should reverse the decision of the court
of appeals.

Respectfully submitted,

KARL A. RACINE
Attorney General for the
District of Columbia

LOREN L. ALIKHAN
Solicitor General
Counsel of Record

CAROLINE S. VAN ZILE
Deputy Solicitor General

CARL J. SCHIFFERLE
Senior Assistant Attorney General
D.C. OFFICE OF THE
ATTORNEY GENERAL
441 4th Street, NW
Suite 630 South
Washington, D.C. 20001
(202) 727-6287
loren.alikhan@dc.gov
Counsel for Amicus Curiae
District of Columbia

26
ADDITIONAL COUNSEL

CYNTHIA H,. COFFMAN LAWRENCE G. WASDEN
Attorney General Attorney General!
STATE OF COLORADO STATE OF IDAHO

1300 Broadway, 10th Floor P.O. Box 89720
Denver, CO 80203 Boise, ID 83720-0010
Curtis T. HILL, Ja Derek SCHMIDT
Attorney General Attorney General
STATE OF INDIANA STATE OF KANSAS
Office of the 120 SW 10th Avenue

Attorney General 2nd Floor
200 Weat Washington Street Topeka, KS 66612-1597
Room 219
Indi lia. IN 46204 Jury LANDRY
Janet T. MiLis STATE OF LOUISIANA
Attorney General 1885 North Third Street
STATE OF MAINE Baton Rouge, LA 70802
6 State House Station Jim Hoop
Augusta, ME 04333-0006 Attorney General
Tim Fox STATE OF MISSISSIP!
Attorney General Post Office Box 220
STATE OF MONTANA Jackson, MS 39205
215 North Sanders Street

HECTOR BALDERAS
MIKE HUNTER STATE OF NEW MEXICO
Attorney General 408 Galisteo Street
STATE OF OKLAHOMA Santa Fe, NM 87501
313 NE 21et Street
JOSH SHAPIRO

Oklahoma City, OK 73106 Attorney General
Peren F. KILMARTIN COMMONWEALTH OF
Attorney General PENNSYLVANIA
STATE OF RHODE ISLAND Strawberry Square
150 South Main Street 16th Floor

Attorney General Attorney General

STATE OF SOUTH CAROLINA STATE OF WYOMING

Rembert C. Dennis 2320 Capitol Avenue
Office Building Cheyenne, WY 82002

P.O. Box 11549

Columbia, SC 29211-1549

Salt Lake City, UT 84114-2320

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0817%3A10. Public record. Not legal advice.