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

No. 17-1174

In The

Supreme Court of the Hnited States

”*

¥

LUIS A. NIEVES AND BRYCE L. WEIGHT,

Sa

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

o

a

BRIEF OF NATIONAL ASSOCIATION OF

LIsA E. SORONEN SEAN R. GALLAGHER

STATE AND LOCAL BENNETT L. COHEN*

LEGAL CENTER BRITTON St. ONGE

444 North Capitol Street, NW, POLSINELLI PC

Ste. 515 1401 Lawrence Street,

Washington, D.C. 20001 Ste. 2300

202-434-4845 Denver, CO 80202

lsoronen@sso.org 303-572-9300

bcohen@polsinelli.com

*Counsel of Record

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE................. 1

SUMMARY OF THE ARGUMENT ..................... 3

STATEMENT OF THE CASE..................000000000- 4

(ERLE 6

A. The Ninth Circuit stands alone in permit-

ting retaliatory arrest claims despite

I iniiiciindcnteitantnnietnnnimmnnmmnenns 8

B. Qualified immunity does not provide ade-

GUALS PTOCSSEIGA.......0.ccccecccccccccscccccscseccscesess 8

C. Permitting retaliatory arrest claims de-

spite probable cause will hinder the oper-

ations of state and local governments....... 11

D. The First Amendment is not the sole bul-

wark against retaliatory arrests; the 50

State Constitutions also protect free

ss

TABLE OF AUTHORITIES

Page

CASES

Atwater v. City of Lago Vista, 532 U.S. 318

STITT iibihatictheilihthilieteieliniigaeatlaesiasiisiatatitidiasiibincuneaeemmeonne 7

Bock v. Westminster Mall Co., 819 P.2d 55 (Colo.

narra chicedsshahiesddleestaanbehhtinidainnenidieahilbhideaatiataaiianisatieed 20

City and County of San Francisco v. Sheehan,

ek is SE ciiihntiducinenidensiesalersieeninetelintnns 9,11

District of Columbia v. Wesby, 138 S. Ct. 577

Sita iscileseniinbiedteiissiensnadenesdiintineanebiasinsdanseesedeteemneiens 9, 10

Dublirer v. 2000 Linwood Ave. Owners, Inc., 103

i I cectnnertesetscnssnestacécaisineetenennaniessess 20

Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742

SUT TIITEE widiihinictuniininietanintetniinidmiinnindduiieiatnindeeneneeeeies 20

Florida v. Royer, 460 U.S. 491 (1983) ..............cccc0cc00e- 15

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

Tit icincitnistsintiteanitaaneeaciigiiinhteniniinibilisidigiaeataiemmmeees 8, 10

Hartman v. Moore, 547 U.S. 250 (2006) ....................... 6

Kelo v. City of New London, 545 U.S. 469 (2005)....... 19

Kisela v. Hughes, 138 S. Ct. 1148 (2018)................ 9,11

Lozman v. City of Riviera Beach, 138 S. Ct. 1945

ini crtiinthieicicstchahiicadindeabiiiaihiertt inaitenhiadeintanesnssbeee passim

Mount Healthy City Board of Education v. Doyle,

ED cnrrtntemtnciaipemeninntnnsnecenneaneseed 6, 21

Mountain States Tel. & Tel. Co. v. Arizona Corp.

Comm ’n, 773 P.2d 455 (Ariz. 1989)......................... 19

sit

TABLE OF AUTHORITIES—Continued

Page

Mullenix v. Luna, 136 S. Ct. 305 (2015)...................... 9

New York v. Quarles, 467 U.S. 649 (1984) .................. 14

Oregon v. Hass, 420 U.S. 714 (1975).............ccccceeeeeeeee 19

People ex rel. Arcara v. Cloud Books, Inc., 503

eS Gee Ge Wo ee Phcancecavsecscenibnisessendsennneaienveaste 19

Pruneyard Shopping Center v. Robins, 447 U.S.

Fe Gi rccmcenctniccesmmensniniaemaneininaii 19, 20

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

Robins v. Pruneyard Shopping Center, 592 P.2d

DG GER SD cecacscensusssbininrcisicintaagsinniviamamnintinl 20

State v. Schmid, 423 A.2d 615 (N.J. 1980) ................. 19

White v. Pauly, 138 S. Ct. 577 (2017).............00000000cce0eee 9

Wilson v. Layne 526 U.S. 603 (1999) ..........0..00000ccccceee 11

Wong Sun v. United States, 371 U.S. 471 (1963)........ 12

STATUTES

Be ee Be iccccstasnctsonennttcsouiicbecnidencinmninnmeaiiiiia 2

BP ES OF ED cescncerenincsccsecccsoceeensetpeaimisencsitini passim

STATE CONSTITUTIONS

Ba, GEE, GORD. Th G ecccnnccerasncccsccnsctonsticinsindiomganiil 17

FE TE GE. By BB vecccnscennscscsscnsscunsiccionseitntsamaiatens 17

FR. FR. GIs Bis BG eccecenensecsicncrnennieninensininsntntiiainisiiniae 17

Dam, GER. GBB. B, B Gccsecsessscccssrsssessesunesssnmesnienensatia 17

iv

TABLE OF AUTHORITIES—Continued

Page

EE Ce 17, 18

TT TT on csrenrenemsanecssenenecsesnscensesenese 17

aan eeennrrmnepcenmenants 17

ce 17

Ec 17

SS | een 17

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hi eee ctemnemennsnnsnnnanensesenanenesat 17

a 17

eT 17

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Kan. Const. Bill of Rights § 11 .............c0ccc0c0c0eeeeen 17

EE 17

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LE 17

Md. Const. Declaration of Rights, art. 10 .................. 17

ES 17

Te cnc apneenenmennmnnenenneenscenesnansess 17

TI ir ntrntnsrnnrpennsnpennemenenmnsnntenn 17

TT occ rpeenenrpenmuneonennnnnenenssneasesent 18

cence aenmennepnnnnsnsnaneacennensntnten 18

SE ee 17, 18

I eerie 18

Vv

TABLE OF AUTHORITIES—Continued

Page

eT 18

EE III: TIA IITs ccccrnrntihinniniennienantinbianipidiiendiinieihniinans 18

BIT To csinrscen a rntnmpscennininensinnnniaismendndinenas 17

8 eee eNer 17

rae 18

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CE eee 18

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III terescrunnnnenmencimetinisemminmenineians 18

BI It T Ti iicccniensicnnnchieniieenicinntiniecstjennintentdnanitiiel 18

BR TI oo cresirncennnsindeentemnmateniinaniaeiinttl 18

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Totti IE ocrnncnnsssnpssisenntnninidninnianinnginndesinis 18

EN OU 18

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1

INTEREST OF THE AMICI CURIAE'

The National Association of Counties (“NACo”) is

the only national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the nation’s 3,069

The National League of Cities is dedicated to help-

ing city leaders build better communities. The League

is a resource and advocate for 19,000 cities, towns, and

villages, representing more than 218 million Ameri-

cans.

The U.S. Conference of Mayors (“USCM”), founded

in 1932, is the official nonpartisan organization of all

United States cities with a population of more than

30,000 people, which includes over 1,400 cities. Each

city is represented in USCM by its chief elected official,

the mayor.

The International City/County Management Asso-

ciation (“ICMA”) is a non-profit professional and edu-

cational organization consisting of more than 11,000

appointed chief executives and assistants serving cit-

ies, counties, towns, and regional! entities. |CMA’s mis-

sion is to create excellence in local governance by

' The parties have consented to the filing of this brief. Coun-

sel of record for all parties received notice at least 10 days prior

to the due date of amici curiae’s intention to file this brief. No

counsel for a party authored this brief in whole or in part, and no

counsel for a party (nor a party itself ) made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

No person other than amici or their counsel made a monetary con.

tribution to its preparation or submission.

2

ment of local governments throughout the world.

The International Municipal Lawyers Association

(“IMLA”) has been an advocate and resource for local

government attorneys since 1935. Owned solely by its

more than 2,500 members, IMLA serves as an interna-

tional clearinghouse for legal information and cooper-

ation on municipal legal matters. IMLA’s mission is to

advance the responsible development of municipal law

through education and advocacy by providing the col-

lective viewpoint of local governments around the

country on legal issues before the Supreme Court of

the United States, the United States Courts of Appeals,

and state supreme and appellate courts.

The National Sheriffs’ Association is a 26 U.S.C.

§ 501(cX4) non-profit association formed in 1940 to

promote the fair and efficient administration of crimi-

nal justice throughout the United States, and to pro-

mote the public safety of our nation’s local

communities. The Association has some 21,000 indi-

vidual members and is a strong advocate for our na-

tion’s over 3,000 Departments/Offices of Sheriff who

are directly elected by the people in their local parish,

county or city. The Association promotes the public-in-

terest goals and policies of law enforcement in our na-

tion and it participates in judicial processes where the

vital interests of the public, law enforcement, and its

members are being affected.

a ientions represent-

ing elected and appointed officials of state and local

3

governments. Members of these organizations employ

law enforcement officers who keep the peace and pro-

tect public order and safety. State and local law en-

forcement officers frequently encounter situations

similar to the one at issue in this case.

*

SUMMARY OF THE ARGUMENT

This case presents this Court’s most recent oppor-

tunity to craft definitional elements for the federal tort

of First Amendment retaliatory arrest. In particular, a

decision on the merits would allow this Court to re-

solve a circuit split regarding whether First Amend-

ment retaliatory arrest claimants in a typical case

must plead and prove the absence of probable cause for

their arrest—a question that this Court left open in

Reichle v. Howards, 566 U.S. 658 (2012), and did not

resolve in Lozman v. City of Riviera Beach, 138 S. Ct.

1945 (2018).

Reichle and Lozman lie at endpoints on the contin-

uum of retaliatory arrest scenarios. The instant case

presents a more typical scenario: one where police ar-

rive in the midst of a complicated and fluid situation,

and must make quick decisions to maintain public

run” of retaliatory arrest claims, like this one, is to re-

quire the absence of probable cause. Law enforcement

requires knowledge of the law, but law enforcement of-

ficers are (typically) not attorneys, or judges. The legal

standard of probable cause is constitutional, clear,

4

objective, and what law enforcement officers are

trained on so they can make arrests in the heat of com-

plicated, rapidly evolving and sometimes violent situ-

ations without having to pause for analysis. The no-

probable-cause rule is therefore the right rule for the

mine run of cases. It is also the only workable rule.

Only a no-probable-cause rule can prevent the sort of

post-hoc factual and legal deconstruction that every

claimed retaliatory arrest situation will inevitably in-

vite, as even this “typical” retaliatory arrest scenario

confirms.

In adopting such a rule, the Court can take com-

fort from the fact that retaliatory arrest claimants will

not necessarily be put out of court by the existence of

probable cause for their arrest. Claimants are free to

pursue state-law claims, allowing the states to develop

and refine the law in this area. Free speech retaliatory

arrest is a tort claim, and tort law ordinarily develops

through the states’ common-law process. The 50 state

constitutions offer meaningful protections against the

abridgment of the freedom of speech, and nothing pre-

vents plaintiffs from pressing their rights under appro-

priate state law.

*

STATEMENT OF THE CASE

Amici adopt Petitioners’ statement of the case.

Amici note that the facts of this case—an alcohol-

fueled party on the last night of Alaska’s Arctic Man

extreme winter sports festival—fit well within what

5

this Court described as the “mine run” of cases that it

was concerned with in Lozman. See Lozman, 138 8. Ct.

at 1954. This case presents a version of the “bar fight”

scenario Justice Kennedy described at oral argument

in Lozman:

You have people that are fighting in a bar and

the—the policeman has to get some order and

the—one of the more difficult suspects says

something bad to the policeman, and he ar-

rests him. Under your view, that’s a violation

lof the First Amendment]?

Lozman oral argument transcript at 5:23-6:3.

This Court’s two most recent retaliatory arrest

cases, by contrast, did not produce a general rule be-

cause they presented facts at the opposing ends of the

continuum of cases. In Reichle, a Secret Service agent

had to decide on the spot whether to arrest someone

who had just shoved the Vice President in an unsecure

environment, lied about it, and was otherwise uncom-

municative. The claimant asserted that even though

he had assaulted the Vice President and then lied

about it, the supposedly real reason the agent arrested

him was for expressing his displeasure with the ad-

ministration’s foreign policy. It is hard to imagine a

less credible claim of retaliatory motive for the arrest.

Lozman’s retaliation claim arguably lies on the other

end of the spectrum. After viewing the video of Loz-

man’s arrest just a few seconds into his calm remarks

at a city council meeting, and considering it in light of

the city council’s prior discussion of “intimidating”

6

him, it is hard to imagine a more credible allegation of

retaliatory motive.’

This case, by contrast, presents a version of the

“bar fight” scenario that Justice Kennedy recognized

lies in the middle of the continuum of cases, and which

this Court’s rules must address.

ee.

—

ARGUMENT

This Court has understandably struggled to craft

a retaliatory arrest rule that properly balances free

speech values with a desire to spare police and other

law enforcement from easily-alleged and often merit-

less or trivial retaliation claims. See Lozman, 138

S. Ct. 1953-54 (discussing the inherent tensions in

crafting a rule that accommodates these competing

values).

Amici support Petitioners’ position that the exist-

ence of probable cause should defeat a retaliatory ar-

rest claim as a matter of law, using the analytical

framework of Hartman v. Moore, 547 U.S. 250 (2006),

rather than Mount Healthy City Board of Education v.

* Even Lozman’s retaliatory arrest claim can be squared

with a no-probable-cause rule. Lozman had his day in court. He

asked for a jury, and chose to represent himself in front of that

jury. The court submitted the question of probable cause to the

jury. The jury may well have rejected Lozman’s retaliatory arrest

claim for any of the myriad reasons juries do—e.g., because per-

haps they just didn’t like Mr. Lozman—and the jury’s questiona-

ble probable cause determination may have been the vehicle to

reach this outcome.

7

Doyle, 429 U.S. 274 (1977). The no-probable-cause rule

is consistent with the constitutional principles at

stake, closely tracks general tort principles, accommo-

dates the distinctive features of retaliatory arrest

claims, and is consonant with First Amendment val-

ues. A no-probable-cause rule also gives law enforce-

ment clear guidance in the field, something this Court

prefers when crafting constitutional rules to govern

police conduct. See Atwater v. City of Lago Vista, 532

U.S. 318, 347 (2001). This rule also will better weed out

frivolous retaliatory arrest claims early on—or better

yet, will dissuade plaintiffs from asserting meritless

claims at all. And the no-probable-cause rule avoids

the sort of post-hoc deconstruction of arrest scenarios

that inevitably arise when the parties lawyer up, but

is only likely to obscure rather than elucidate an ar-

resting officer’s true motives.

Additionally, in crafting a federal tort of retalia-

tory arrest cognizable through Section 1983, this Court

should be mindful that similar claims can be brought

under available state law. States are free to develop

their own versions of the tort of retaliatory arrest pur-

suant to state constitutions and the common law pro-

cess. States are not constrained by Section 1983's

importation of 19th-century tort principles, but are

free to develop the law in this area as they see fit.

Adopting the no-probable-cause rule for federal Sec-

tion 1983 claims will still leave courthouse doors open

for claimants who present claims deemed worthy un-

der state law.

8

A. The Ninth Circuit stands alone in permitting

retaliatory arrest claims despite probable

cause.

This Court is familiar with the circuit split on

whether to apply a no-probable-cause rule to retalia-

tory arrest claims from Reichle and Lozman. The Ninth

Circuit appears to stand alone in permitting retalia-

tory arrest claims despite probable cause, per Ford v.

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

The fact that the large majority of circuits have lined

up on the other side of this issue is itself persuasive

authority that the no-probable-cause requirement is

the better rule.

B. Qualified immunity does not provide ade-

quate protection.

This Court has identified two key problems with

relying on qualified immunity to act as a safeguard

against frivolous or meritless First Amendment retali-

atory arrest claims.

First, the nature of a First Amendment retaliatory

arrest claim naturally lends itself to easily manufac-

tured factual disputes regarding the subjective

® The Tenth Circuit sided with the Ninth in Reichle, but that

decision was effectively reversed by this Court in an opinion

which noted how the Tenth Circuit’s own case law did not clearly

reject a no-probable-cause rule. Reichle, 566 U.S. at 670, n.7. The

Tenth Circuit has not re-sided with the Ninth on this issue since

its correction in Reichle.

9

motivation of the police officer. As Justice Alito noted

during oral argument in Lozman:

\I}f there is in a case a genuine issue about

the officer's motivation, I don’t see how the of-

ficer will ever be able to get dismissal based

on qualified immunity. . . . And if there’s any

evidence, circumstantial evidence, of—of re-

taliatory motives, such as the person who's

arrested saying something that’s insulting to

the officer, you’re going to be able to infer that.

Lozman oral argument transcript at 21:23-22:2; 22:14-

19.

Because retaliatory arrest cases, by their very na-

ture, require the fact-finder to delve into the officer’s

subjective motivation for the arrest, courts will always

be inclined to send these cases to a jury rather than

dispose of them through qualified immunity.

Second, lower courts’ failure to apply qualified im-

munity has fairly compelled this Court to take the ex-

traordinary step of summarily reversing the lower

courts on a number of occasions. See, eg., Kisela v.

Hughes, 138 S. Ct. 1148 (2018) (per curiam); District of

Columbia v. Wesby, 138 S. Ct. 577 (2018); White v.

Pauly, 138 S. Ct. 577 (2017) (per curiam); Mullenix v.

Luna, 136 S. Ct. 305 (2015) (per curiam); City and

County of San Francisco v. Sheehan, 135 S. Ct. 1765

(2015). In reversing these erroneous denials of quali-

fied immunity, the Court has “repeatedly stressed that

courts must not define clearly established law at a high

level of generality, since doing so avoids the crucial

10

question whether the official acted reasonably in the

particular circumstances that he or she faced.” Wesby,

138 S. Ct. at 590.

The fact that this Court has needed to continually

summarily reverse the lower courts because of their

failure to properly follow the Court’s directives regard-

ing qualified immunity strongly suggests that the doc-

trine is not serving as an adequate shield from liability

for reasonable police officers making arrests based on

probable cause. Chief Justice Roberts noted as much at

oral argument in Lozman:

Well, we get a lot of cases, particularly from

where you've said, the cases you have looked

at, where qualified immunity is applied in a

case where we found it necessary to—to re-

verse. I’m not sure that it’s as solidly estab-

lished a doctrine as—as you suggest to

protect—to—to leave—we can allow this ac-

tion because qualified immunity will take care

of the—the problems.

Lozman oral argument transcript at 17:14-23.

The Ninth Circuit’s failure to apply qualified im-

munity to Respondent Bartlett’s retaliatory arrest

claim provides yet another example of this phenome-

non. The Ninth Circuit saw fit to withhold qualified im-

munity from the Petitioners because it viewed its

circuit law rejecting the no-probable-cause rule for re-

taliatory arrest claims as established, based on Ford.

But even where a particular circuit’s law is settled, the

existence of a split among the circuits supports the

11

application of qualified immunity. See Wilson v. Layne

526 U.S. 603, 618 (1999) (noting that where circuits are

split, “If judges thus disagree on a constitutional ques-

tion, it is unfair to subject police to money damages for

picking the losing side of the controversy.”). This Court

could therefore summarily reverse the Ninth Circuit in

this case based on its failure to apply qualified immun-

ity, as it did in Kisela and Sheehan, and as it reversed

other circuits in the above cases.

But this Court’s resources are obviously better

used by announcing a general substantive rule of law

that appropriately precludes claims that should not be

brought in the first place, such as a no-probable-cause

rule for First Amendment retaliatory arrest cases.

Having declined to announce a general rule for these

claims in Reichle and Lozman, the time has clearly

come for this Court to announce this rule here, in this

mine-run type retaliatory arrest case.

C. Permitting retaliatory arrest claims despite

probable cause will hinder the operations of

state and local governments.

A rule permitting retaliation lawsuits in the face

of probable cause will significantly affect the ability of

state and local law enforcement to perform their pro-

tective functions. Law enforcement officers face unfa-

miliar and potentially life-threatening situations

every day. Similar to the decision whether to use force

when making an arrest, the decision to make an arrest

in the first place—determining whether probable

12

cause exists—is made “not in the courtroom but at the

scene,” often in a “split second.” Wong Sun v. United

States, 371 U.S. 471, 499 (1963) (Clark, J., dissenting).

An officer must respond to a situation he or she en-

counters then and there, without the luxury of consult-

ing an attorney beforehand to determine whether an

arrest will later embroil him or her in a lawsuit. Where

an officer has probable cause, the decision to arrest is

not one this Court should force an officer to second

guess on pain of personal liability simply because a

judge or jury, years later, may see the situation differ-

ently. The stakes are too high to impose such a burden

on officers.

An officer who, based on instinct, training, and

(most importantly) probable cause, decides it is appro-

priate to arrest someone should not face personal lia-

bility for that decision simply because the arrestee

thinks he or she was arrested for his or her speech—or

because the arrestee likes to sue police officers. As this

Court noted during questioning in Reichle, such claims

would be easy enough to set up—a claimant need only

put an “I hate the police” bumper sticker on his car. See

Reichle oral argument transcript at 39:6-12. Claimants

without cars could for example wear “Make America

Great Again” hats and “Black Lives Matter” t-shirts—

a sartorial combination that could provide a basis for

a speech-based retaliation lawsuit in most any situa-

tion. And, as Reichle makes clear, the speech compo-

nent of any and every political protest can supply a

basis for retaliation claims by those arrested. See, e.g. ,

Tyler Layne, “575 people arrested during immigration

13

protest in D.C.” (June 28, 2018); Hayden Ristevski &

Stephan Johnson, “LMPD arrests 9 Occupy ICE pro-

testers for blocking Immigration Court” at (July 26,

2018); CBS News, “Anti-gun violence protesters shut

down part of Chicago freeway” (July 7, 2018).* These

recent political protests resulting in substantial ar-

rests can be counted upon to generate their share of

retaliatory arrest lawsuits.

cannot be weeded out with similar ease for the simple

vide a rich source of speech and conduct that claimants

can use to survive procedural hurdles. While this

Court’s recent tightening of pleading standards in

Twombly and Iqbal discounts mere conclusory allega-

tions, it is hard to imagine a police encounter resulting

in an arrest that will not supply enough speech and

conduct to permit a claimant to survive a challenge un-

der Rule 12(bX6).

Rule 56 is similarly ill-equipped to screen out

meritless claims, given the obligation to view facts in

the light most favorable to the non-moving claimant,

who sees every act as motivated by retaliatory animus.

Petitioners’ brief provides an illustrative list of

* Available respectively at httpe//dcew50.com/20 1 8/06/28/57 5-

pec ole-arrested-during-immigration-protest-in-d-c/; http//www.

draw-attention-to-gun-violence 2018-07-07/. All three web pages

last visited August 20, 2018.

14

retaliatory arrest cases of dubious merit that, under

the Ninth Circuit’s minority rule, must go to trial in

order to be disposed of.

Even when claimants are entirely sincere, an ar-

rest’s temporal proximity to the speech makes it easy

for an arrestee to perceive the speech as motivating the

ence that speech caused the arrest. See New York v.

Quarles, 467 U.S. 649, 656 (1984) (noting the “kaleido-

scopic situation|s]” officers face, where “spontaneity” is

“necessarily the order of the day” and officers must re-

spond “out of a host of different, instinctive, and largely

many ways that speech attendant to an arrest may be

irrelevant to the arrest, or legitimately taken into ac-

count by law enforcement, but nonetheless wrongly

perceived by an arrestee as motivated by a desire to

retaliate against the arrestee’s protected speech.

In addition to Petitioners’ litany of sound reasons

for imposing a no-probable-cause rule, there is the in-

evitable post-hoc deconstruction of an arrest. Every en-

counter that leads to an arrest with attendant speech

will provide a rich canvas for later deconstruction by

lawyers. Here, for example, Respondent Bartlett

claims that Officer Nieves retaliated against his exer-

cise of First Amendment rights when Nieves allegedly

have talked to me now.” Although this alleged com-

ment was not captured on any of the arrest video, and

was disputed, the Ninth Circuit held that this allega-

tion supported Bartlett’s First Amendment retaliation

15

claim. This illustrates how retaliatory arrest cases are

often constructed post-hoc, and thus can bear little if

any relation to the actual facts, conduct, and motiva-

tions of the participants at the scene. The post-hoc con-

structed nature of Respondent Bartlett’s position is

further emphasized by how his narrative arguably im-

plicates Fifth Amendment rights more than First

Amendment ones.’ Respondent’s apparent constitu-

tional confusion in this case, echoed by the Ninth Cir-

cuit, is testament to how any situation resulting in an

arrest will provide a rich source of speech, conduct and

hoc reconstruction into a retaliation lawsuit.

Permitting retaliation claims in the face of proba-

ble cause would prompt officers to second-guess them-

selves in tense and rapidly evolving situations like the

one here. Officers would have to stop to ask themselves

whether they truly are making an arrest based on a

concern that a crime has been or is about to be com-

mitted, or instead whether their personal views of the

arrestee’s speech are motivating the decision in some

* This Court has recognized that citizens have a right to ig-

nore the police when questioned, and police lack probable cause

or reasonable suspicion to support the questioning. Florida v.

Royer, 460 U.S. 491, 498 (1983). Royer, however, did not ground

this right in the First Amendment. The right would appear to be

better grounded in the Fifth Amendment right to remain silent in

the face of law enforcement officers’ investigatory questioning.

Respondent Bartlett did not sue for Fifth Amendment retaliation,

and there is no legally cognizable theory of Fifth Amendment re

taliation for an arrestee who declines to answer a police officer's

is arrest.

16

way. And when officers are confident in the righteous-

ness of their motives and legal analysis, they may stil!

choose not to make a justifiable and prudent arrest be-

cause they know their decisions will be misconstrued

by the arrestee—perhaps honestly, perhaps deliber-

ately, but likely inevitably.

Finally, beyond the direct financial costs they con-

ee eee

due to depositions and other case preparations), frivo-

lous or meritless retaliation lawsuits can also impose

significant reputational harm on both the officer and

local government. The prospect of facing personal lia-

bility for actions taken in the line of duty contributes

to police departments’ struggle to fill and maintain

their ranks. See Sean Curtis, 4 reasons why police de-

partments are struggling to fill their ranks, Police-

one.com (Oct. 12, 2017).* Rejecting the no-probable-

cause rule would amplify this recruitment and reten-

tion problem.

D. The First Amendment is not the sole bulwark

against retaliatory arrests; the 50 State Con-

stitutions also protect free speech.

Justice Thomas’s thorough and incisive dissent in

Lozman provides the analytical framework for a fed-

eral no-probable-cause rule that should apply to this

* Available at https-//goo.gi/5KLKjx (last visited August 20,

2918).

17

case and the mine run of retaliatory arrest cases. Loz-

man, 138 S. Ct. at 1955-59 (Thomas, J., dissenting).

Justice Thomas’s dissent, however, is necessarily

framed by Section 1983 and its 19th-century federali-

zation of certain areas of tort law. See Lozman, 138

S. Ct. 1956—57 (discussing how Section 1983 claims are

“a species of tort liability” that the Court develops

through the common law process). Since Erie, this

Court has properly left development of tort law to the

states, and generally eschewed the notion of federal

common law save in those narrow areas where such a

process is called for, such as defining Section 1983

claims. This rare dive into tort law through Section

1983 serves as a reminder that the states are the tra-

ditional and primary fonts for tort claims, and devel-

opers of theories of tort liability.

By adopting a no-probable-cause rule for the

mine run of Section 1983 retaliatory arrest claims as

a federal matter, this Court would not prevent the

states from developing this area of tort law differently.

tect against speech abridgment.’ The various state

’ See Ala. Const. art. 1, § 4; Alaska Const. art. I, § 5; Ariz.

Const. art. 2, § 6; Ark. Const. art. 2, § 6; Cal. Const. art. 1, § 2(a);

Colo. Const. art. II, § 10, Conn. Const. art. I, § 4; Del. Const. art.

1, § 5; Fla. Const. art. I, § 4; Ga. Const. art. I, § 1, 4 5; Haw. Const.

art. I, § 4; Idaho Const. art. I, § 9; Ill. Const. art. I, § 4; Ind. Const.

art. 1, § 9; lowa Const. art. I, § 7; Kan. Const. Bill of Rights § 11;

Ky. Const. § 8; La. Const. art. I, § 7; Me. Const. art. I, § 4; Md.

Const. Declaration of Rights, art. 10; Mass. Const. Pt. 1, art. XXI;

Mo. Const. art. I, § 8; Mont. Const. art. II, § 7; Neb. Const. art. I-

5; Nev. Const. art. 1, § 9; N.H. Const. Pt. I, art. 22; N.J. Const.

18

formulations do not always mirror the First Amend-

ment, but all provide rich safeguards for speech.”

This Court has long acknowledged that its inter-

art. |, $6; N.M. Conat. art. Il, § 17; N.Y. Const. art. I, § 8; N.C.

Const. art. 1, § 14; N.D. Const. art. I, § 4; Ohio Const. art. I, § 11;

Okla. Const. § [1-22; Or. Const. art. I, § 8; Pa. Const. art. I, § 7;

RI § ,

art. I, § 15; Vt. Const. ch. I, art. 13; Va. Const. art. I, § 12; Wash.

Wyo. Conat. art. I, § 20.

PERGSES

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bulwarks of liberty, and can never be restrained except by

despotic governments; that any citizen may freely speak, write,

i

19

Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81

(1980); see also Kelo v. City of New London, 545 U.S.

469, 489 (2005) (saying same thing with respect to

Fifth Amendment Takings Clause); Oregon v. Hass,

420 U.S. 714, 719 (1975) (same for Fifth Amendment

protection against self-incrimination).

Some states have taken the Court’s statements to

heart by construing their constitutions to protect more

speech than the First Amendment does. See, ez,

Mountain States Tel. & Tel. Co. v. Arizona Corp.

Comm’n, 773 P.2d 455, 459 (Ariz. 1989) (“Indeed, this

court has previously given art. 2, § 6 jof the Arizona

Constitution] greater scope than the first amend-

ment.”); People ex rel. Arcara v. Cloud Books, Inc., 503

N.E.2d 492, 557-58 (N.Y. 1986) (“[Tihe minimal na-

tional standard established by the Supreme Court for

First Amendment rights cannot be considered disposi-

tive in determining the scope of this state’s constitu-

tional guarantee of freedom of expression.”).

Some states have also taken the lead in construing

their constitutions to protect against abridgment of

speech by private actors. For example, the New Jersey

Supreme Court has held that the New Jersey Consti-

tution’s free-speech clause is “available against unrea-

sonably restrictive or oppressive conduct on the part of

private entities that have otherwise assumed a consti-

tutional obligation not to abridge the individual exer-

cise of such freedoms.” State v. Schmid, 423 A.2d 615,

628 (N.J. 1980) (reversing on state constitutional

literature at Princeton without permission); see

20

Dublirer v. 2000 Linwood Ave. Owners, Inc., 103 A.3d

249, 251 (N.J. 2014) (sustaining on state-law grounds

a challenge to private high-rise cooperative apartment

building’s “home rule” barring soliciting and distrib-

uting written materials in the building).

The California Supreme Court has similarly con-

strued California’s state constitution, by holding that

a privately owned shopping mall is a public forum

where visitors can exercise their freedom of speech the

same way they would be entitled to do on a city side-

walk. Robins v. Pruneyard Shopping Center, 592 P.2d

341, 347 (Cal. 1979), aff'd, 447 U.S. 74 (1980); see Fash-

ion Valley Mall, LLC v. NLRB, 172 P.3d 742 (Cal. 2007)

(holding that the right to free speech embodied in the

California Constitution even includes the right to urge

customers in a private shopping mall to boycott one of

its stores). Accord Bock v. Westminster Mall Co., 819

P.2d 55, 56 (Colo. 1991) (“Within the public spaces of

the Mall, Article II, Section 10 [of the Colorado Consti-

tution] protects petitioners’ rights to distribute politi-

cal pamphlets and to solicit signatures pledging non-

violent dissent from the federal government’s foreign

policy toward Central America.”).

Adopting a no-probable-cause rule for First Amend-

ment retaliatory arrest claims under Section 1983 does

not prevent states from taking a different approach

under their respective state constitutions. This Court

can take the opportunity of its decision in this case to

remind retaliatory arrest claimants that their rights

can be vindicated through state law just as effectively

(and perhaps more effectively) than through federal

21

law, which is necessarily more constrained than state

common law due to its grounding in Section 1983 and

attendant 19th-century principles of tort law. See Jef-

frey S. Sutton, Why Teach—and why Study—State

Constitutional Law, 34 Okla. City U. L. Rev. 165, 173—

76 (2009) (describing the many advantages of develop-

ing rights as a matter of state constitutional law). If,

however, this Court takes Respondents’ proposed route

of applying the Mt. Healthy framework even in the face

of probable cause, claimants will continue bringing

their retaliatory arrest claims in federal court because

federal courts will always be the most accommodating

forum, and this area of state tort law will likely remain

forever undeveloped.

+.

22

CONCLUSION

Now that it is presented with a mine-run retalia-

tory arrest case, this Court should hold that probable

cause for the arrest defeats a claim for First Amend-

ment retaliation as a matter of law, reverse the Ninth

Circuit’s contrary rule, and seal the federal circuit

split. This Court can also remind claimants that they

can bring state law retaliatory arrest claims in state

courts, where the common law process is not con-

strained the way it is in federal court.

Respectfully submitted,

Lisa E. SORONEN SEAN R. GALLAGHER

STATE AND LOCAL BENNETT L. COHEN*

LEGAL CENTER BRITTON St. ONGE

444 North Capitol Street, NW, POLSINELLI PC

Ste. 515 1401 Lawrence Street,

Washington, D.C. 20001 Ste. 2300

202-434-4845 Denver, CO 80202

lsoronen@sso.org 303-572-9300

beohen@polsinelli.com

*Counsel of Record

Counsel for Amici Curiae

August 27, 2018