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

No. 17-1174

Ju The

Supreme Court of the Anited States

«

LUIS A. NIEVES and BRYCE L. WEIGHT,

On Writ Of Certiorari To The

United States Court Of

For The Ninth Circuit

JOHN W. WHITEHEAD ERIN GLENN BUSBY

DouGLAS R. McKusick Counsel of Record

THE RUTHERFORD INSTITUTE Lisa R. EskKow

923 Gardens Blvd. 727 East Dean Keeton St.

VA 22901 in, TX 78705

(434) 978-3888 (713) 966-0409

ebusby@law. utexas.edu

October 9, 2018

*

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................c<-0000000000- iii

INTEREST OF AMICUS CURIAE..................-.--- 1

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

[EELS EC 4

I. LIMITING THE REDRESSABILITY OF

ARRESTS MADE IN RETALIATION

FOR PROTECTED SPEECH WOULD

UNDERMINE THE PURPOSE OF THE

Il. IMPORTING A PROBABLE-CAUSE

TEST INTO THE RETALIATORY-

ARREST CONTEXT IS UNJUSTIFIED

AND UNNECESSARY TO WEED OUT

INSUBSTANTIAL CLAIMS. .................0000+- 10

A. The Default Mt. Healthy Test Works

Well When Applied To A Range Of

Intent-Based Claims And Would Be

Alleging Retaliatory Arrests ............... 11

B. Hartman’s Retaliatory-Prosecution Rule

Is Based On Unique Circumstances Not

Present In Retaliatory-Arrest Cases..... 14

C. The Common Law Does Not Provide

Guidance For The Elements Of A

Retaliatory-Arrest Claim Or Support

The Addition Of A No-Probable-Cause

ss

TABLE OF CONTENTS -— Continued

Page

D. The Law Already Includes Ways To

Screen Out Insubstantial Retaliatory-

Arrest Claims Without Imposing

Additional Elements............................ 21

Ill. IMPORTING A PROBABLE-CAUSE

REQUIREMENT WOULD PROVIDE

OFFICERS WITH AN AUTOMATIC

ESCAPE FROM TOO MANY RETALIATORY-

ARREST SUITS, UNDERMINING THE

CAPACITY OF § 1983 TO PROTECT FREE

See tarntcencnccvevcususscncseusandusscusedsscsonecescenes 30

sa

TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................ 23

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ... 25, 26

Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668

Gir chicacinscsecscennsnicennetanstitinnsnedsnignadsmensinnemninidne 12, 13

Bd. of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico, 457 U.S. 853 (1982) (plurality) ........ 12

Behrens v. Pelletier, 516 U.S. 299 (1996) .................... 24

Brandenburg v. Ohio, 395 U.S. 444 (1969) (per

GN ciatcitncenrennnndmntianisnincaietnmnnes 9,10

Carey v. Piphus, 435 U.S. 247 (1976).....................2--+- 20

City of Houston v. Hill, 482 U.S. 451 (1987)........... 9,10

Crawford-El v. Britton, 523 U.S. 574

Fit ntsitinesnninnesntinndninctundninininidhinmigeiennennen 14, 21, 22, 24

Ctr. for Bio-Ethical Reform, Inc. v. City of

Springboro, 477 F.3d 807 (6th Cir. 2007) ............... 13

Devenpeck v. Alford, 543 U.S. 146 (2004) .................. 18

Gitlow v. New York, 268 U.S. 652 (1925) .................... 20

Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996) ........ 13

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ................. 24

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

Hunter v. Underwood, 471 U.S. 222 (1985).......... 12,13

Imbler v. Pachtman, 424 U.S. 409 (1976) ................... 15

Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,

ee Cy See esccsecdnascsacssntemndnactnngunentaneanns 2,8

iv

TABLE OF AUTHORITIES — Continued

Page

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

IIIT nts iiistaindinniguienndtiitbnipeniaidatindiiabietanidienmnmne 17, 20

Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018)........... 13

Manuel v. City of Joliet, 137 S. Ct. 911 (2017)........... 18

McCue v. Bradstreet, 807 F.3d 334 (1st Cir. 2015) ...... 13

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

Eee passim

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)....... 8,9

Rehberg v. Paulk, 566 U.S. 356 (2012)........................ 20

Reichle v. Howards, 566 U.S. 658 (2012).................... 17

Sorich v. United States, 555 U.S. 1204 (2009)............ 26

Terminiello v. City of Chicago, 337 U.S. 1 (1949)......... 9

Texas v. Johnson, 491 U.S. 397 (1989).......................... io)

Texas v. Lesage, 528 U.S. 18 (1999) (per curiam) .....12, 13

Thornhill v. Alabama, 310 U.S. 88 (1940) ...................-... 8

Vill. of Arlington Heights v. Metro. Hous. Dev.

i 12

Whitney v. California, 274 US. 357 (1927),

overruled in part by Brandenburg v. Ohio, 395

US. 444 (1969) (per curiam) .....................cccceeeeeeeeee 10

UNITED STATES CONSTITUTION, STATUTES, AND RULES

ee passim

Vv

TABLE OF AUTHORITIES — Continued

Page

U.S. Const., amend. I-X pmbL, THE Nat’L ARCHIVES

(1789), https://www.archives.gov/founding-

docybill-of-rights-transcript#toc-the-preamble-

IED ecrectisseeterncsendendinnenianinaiinncsnmneny 6,7

te a ticeitenntncnnninsnnissssnnicenssnstoniantiiinneaiiiiea 26

ian creasiidnshaeenianiineetninininiinneniaih 4, 19, 20, 30

8 ee 22, 23

STATE CONSTITUTIONS & STATUTES

Pa. Const. of 1776, declaration of rights, § XII,

AVALON PROJECT (Sept. 28, 1776), http//avalon.

law.yale.edu/18th_century/pa08.asp ........................ 6

Vr. Const. of 1777, ch. 1, cl. 14, AVALON PROJECT

(July 8, 1777), http//avalon.law.yale.edu/18th_

EE 6

PE 27

Coo. Rev. Stat. ANN. § 42-4-1402 ......00. 0... ccc ccee eee 28

8 eee 27, 29

SR, SN Oe i cteriicccccrsccsscnssnscccssceseesccnenvenin 27

Ga. CopE ANN. § 40-6-294(D) .................cceceeeeeeeeeeeeenees 29

GA. CODE ANN. § 40-6-294(c)................ccceeceeeeeereneneneees 29

SH IID ceccestmenscencenmentnensesincaneninnsetdia 28

O_O 28

es I iiteiecicnescescusevecsctecntenvenennecnunsste 27

N.M. Strat. ANN. § 66-7-301 ...................cccccccceeeeeeeeeeees 27

NLM. Sav. Asms. § OB-B-114 .........cccccccccecccccccccccecccccocee 28

vi

TABLE OF AUTHORITIES — Continued

Page

S.D. Copirtep LAWS § 32-20B-6 ..................2..2ccccceeeeee 29

S.D. CODIFIED LAWS § 32-28-7 ...........2......ccccceeeeeeeeeeeees 28

Tex. TRANSP. CODE ANN. § 542.301.....000...00...000..0000000s 27

Tex. TRANSP. CODE ANN. § 543.001....................000000000 27

Tex. TRANSP. CoDE ANN. § 545.352......................-..00+- 27

Tex. TRANSP. CODE ANN. § 545.413.....00000.0....0..2000000e 28

, | A eS 27

a ee I occ ccercscncnnscnacsncetenspennminnsnmmantis 27

Ce ET 29

a a Ce I oo einnscttannicmiinnnitutsuniouiieniton 29

Was es GENUINE RUSH UII cicertsncepasescnevensenennenninemencosnies 29

LEGISLATIVE AND GOVERNMENTAL MATERIALS

An Act Respecting Alien Enemies, THE AVALON

PROJECT (July 6, 1798), http-//avalon.law.yale.

edu/18th_century/alien.asp ..................cccccceeeeeeeeneeee 7

JAMES MADISON, THE VIRGINIA REPORT OF 1799-

1800, reprinted in VIRGINIA GENERAL

ASSEMBLY HOUSE OF DELEGATES, THE VIRGINIA

REPORT OF 1799-1800, TOUCHING THE ALIEN

AND SEDITION LAWS; TOGETHER WITH THE

VIRGINIA RESOLUTIONS OF DECEMBER 21, 1798,

INCLUDING THE DEBATE AND PROCEEDINGS

THEREON IN THE HOUSE OF DELEGATES OF

VIRGINIA AND OTHER DOCUMENTS ILLUSTRATIVE

OF THE REPORT AND RESOLUTIONS (Leonard W.

Levy ed., Da Capo Press 1970) (1850).................. 5,7

vil

TABLE OF AUTHORITIES — Continued

Page

OTHER MATERIALS

Adams Passes First of Alien and Sedition Acts,

HISTORY.COM (Nov. 16, 2009), https//www.history.

co -in-history/adams-passes-first-of-

alien-and-sedition-acts........................cccceceeeeeeeeeeeeeeeee 7

W. BLACKSTONE, COMMENTARIES ON THE LAWS OF

BIEN ciinrenciintctencnssgncsecenmeincimnnteuanenasceseensee 7

BENJAMIN FRANKLIN, On Freedom of Speech and

the Press, PA. GAZETTE (Nov. 1737), reprinted

in BENJAMIN FRANKLIN, MEMOIRS OF BENJAMIN

Davip L. Hupson, THE First AMENDMENT:

FREEDOM OF SPEECH (2012) ..00000....2.....20ccceceeeeeeeeeeeeees 6

JAMES MADISON, JAMES MADISON’S “ADVICE TO

My Country” (David B. Mattern ed., 1997) ............. 8

Alexandra Natapoff, Misdemeanors, 85 S. CAL.

SS Een eee eee 26, 29

Davip M. RABBAN, FREE SPEECH IN ITS FORGOTTEN

es a sidantccnsstiscsseseccesneccssssnipances 7,8

1

INTEREST OF AMICUS CURIAE'

Amicus The Rutherford Institute, a nonprofit

civil-liberties organization, is deeply committed to

protecting the constitutional freedoms of every American

and the fundamental human rights of all people.

The Rutherford Institute advocates for protection of

civil liberties and human rights through pro bono

legal representation and public education on a wide

spectrum of issues affecting individual freedom in the

United States and around the world.

As a central part of its mission, The Rutherford

Institute advocates against government infringement

of citizens’ rights to freely express themselves, seeking

redress in cases where citizens have faced retaliation

for exercising their First Amendment right to free

speech. To ensure the vitality of the First Amendment,

The Rutherford Institute believes that the existence of

probable cause should not bar recovery in cases where

citizens would not have been arrested but for engaging

in constitutionally protected speech. Instead, the Court

should confirm that the burden-shifting approach set

out in Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274, 287 (1977), strikes the

proper balance between the right to freedom of speech

and the right of officers to make legitimate arrests that

' Letters expressing the parties’ consent to the filing of

amicus briefs have been filed with the Clerk. Pursuant to this

Court’s Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part and that no person other

than amicus and its counsel made a monetary contribution

intended to fund the preparation or submission of this brief.

2

merely coincide with, but are not motivated by, an

individual’s exercise of First Amendment rights.

°

SUMMARY OF THE ARGUMENT

The history of the enactment of the First

Amendment and its modern interpretation by this

Court both underscore the essential role of freedom of

speech as a bulwark against tyranny. As the Court

reaffirmed last term, free speech “is essential to our

democratic form of government, and it furthers the

search for truth.” Janus v. Am. Fed’n of State, Cty., &

Mun. Emps., 138 S. Ct. 2448, 2464 (2018) (citations

omitted). “Whenever the Federal Government or a

State prevents individuals from saying what they

think on important matters ... it undermines these

ends.” Id.

Yet that is precisely the danger petitioners’

proposed test invites, enhancing the government's

ability to silence speech by insulating retaliatory

arrests from review whenever there is probable cause

to believe the speaker also has committed a crime of

any kind. See Pet. Br. 16 (“To maintain a damages

claim for retaliatory arrest in violation of the First

Amendment, a plaintiff must plead and prove the

absence of probable cause for the arrest.”). Rather

than allowing the existence of probable cause to

eradicate retaliatory-arrest claims, as petitioners

advocate, probable cause should be balanced against

the speaker’s right to freedom of speech through the

3

traditional, burden-shifting framework articulated by

this Court in Mt. Healthy, 429 US. at 287. The

probable-cause-based exception to Mt. Healthy

recognized in Hartman v. Moore, 547 U.S. 250, 265

(2006), is uniquely suited to retaliatory-prosecution

claims and should not be imported into the distinct

context of retaliatory arrests.

In departing from the traditional Mt. Healthy

framework and adding a no-probable-cause element to

retaliatory-prosecution claims, this Court in Hartman

cited practical and legal characteristics that inhere in

prosecutions, id. at 259-65, but do not exist in the

distinct context of arrests. While prosecutors enjoy a

presumption of regularity in their prosecutorial

discretion, see id. at 263, officers are granted no such

presumption in connection with arrests. And a

retaliatory arrest does not present the complicated

causation issues inherent in a prosecution allegedly

induced by the animus of an actor other than the

prosecutor. See id. at 261-63. Additionally, the scope

of the probable-cause element in a retaliatory-

prosecution case is limited by the crime documented in

the charging instrument underlying the prosecution,

see id. at 261, whereas defendants in retaliatory-arrest

cases would not be limited by that constraint.

In light of the wide array of arrestable offenses—

littering— it would not be difficult for officers to target

speakers for their speech and then insulate the arrests

from challenge by pointing to some misdemeanor

offense for which probable cause arguably existed.

4

Because the existence of probable cause, alone, would

require dismissal of a retaliatory-arrest claim under

petitioners’ proposed rule, e.g , Pet. Br. at 16, it would

not matter if the crime for which probable cause

existed did not actually motivate the arrest; and it

would not matter if the person arrested did not

actually commit that crime. Speakers would have no

avenue for redressing retaliatory arrests under

petitioners’ approach, the purpose of § 1983 would be

defeated, and valuable speech would be chilled.

To ensure that freedom of speech continues to

serve its vital role in our democracy, the Court should

decline petitioners’ invitation to create a per se,

probable-cause barrier to retaliatory-arrest claims.

The Mt. Healthy framework already successfully

balances the interests of speakers and governmental!

actors when animus-based claims arise in a wide

variety of constitutional contexts, and neither the legal

nor practical realities of retaliatory-arrest claims

require an exception to that longstanding rule.

+

ARGUMENT

I. LIMITING THE REDRESSABILITY OF

ARRESTS MADE IN RETALIATION

FOR PROTECTED SPEECH WOULD

UNDERMINE THE PURPOSE OF THE

FIRST AMENDMENT.

The probable-cause test proposed by petitioners

would significantly limit the ability of speakers to hold

5

officers accountable for unconstitutional retaliation

whenever an officer has probable cause to arrest a

speaker for any offense, even if it can be shown that

the officer would not have made an arrest were it not

for unconstitutional animus. A lack of redress for such

an arrest both removes an incentive for officers to

avoid retaliation and chills the speech of those who will

fear arrest. That result cannot be squared with the

purpose of the First Amendment and the vital role of

speech in the American democratic system.

The Founders created a government where power

was derived solely from the people, who possessed

absolute sovereignty. JAMES MADISON, THE VIRGINIA

REPORT OF 1799-1800, reprinted in VIRGINIA GENERAL

ASSEMBLY House Or DELEGATES, THE VIRGINIA REPORT

or 1799-1800, TOUCHING THE ALIEN AND SEDITION LAws;

TOGETHER WITH THE VIRGINIA RESOLUTIONS OF

DeCEMBER 21, 1798, INCLUDING THE DEBATE AND

PROCEEDINGS THEREON IN THE HOUSE OF DELEGATES OF

VIRGINIA AND OTHER DOCUMENTS ILLUSTRATIVE OF THE

REPORT AND RESOLUTIONS 196 (Leonard W. Levy ed., Da

Capo Press 1970) (1850) (hereinafter “THE VIRGINIA

people remain free to criticize the government. See id.

As Benjamin Franklin put it, “[f]reedom of speech is a

principal pillar of a free government; when this

support is taken away, the constitution of a free society

is dissolved, and tyranny is erected on its ruins.”

BENJAMIN FRANKLIN, On Freedom of Speech and the

Press, Pa. GAzeTTe (Nov. 1737), reprinted in 2 BENJAMIN

FRANKLIN, MEMOIRS OF BENJAMIN FRANKLIN 431 (1840).

According to Franklin, speech provided the citizenry’s

check on the government—*(rjepublics and limited

monarchies derive their strength and vigor from a

popular examination into the action of the

magistrates.” Jd. (cautioning that “an evil magistrate

intrusted with power to punish for words would be

armed with a weapon the most destructive and terrible”).

The same recognition of the importance of freedom

of speech as a means of preventing tyranny can be

found in state constitutions from the time of the

Nation’s founding. See Pa. Const. of 1776, declaration

of rights, § XII, AvALON Prosect (Sept. 28, 1776),

http-/avalon.law.yale.edu/18th_century/pa08.asp (“That

the people have a right to freedom of speech, and of

the freedom of the press ought not to be restrained.”);

Vr. Const. of 1777, ch. 1, cl. 14, AVALON Provect (July

8, 1777), http//avalon._law.yale.edu/18th_century/vt01.asp

(including the same recognition that “the people have

a right to freedom of speech, and of writing, and

publishing their sentiments”); see also Davin L.

Hupson, THe First AMENDMENT: FREEDOM OF SPEECH

4-5 (2012) (discussing provisions safeguarding free

speech in the constitutions of Virginia, Pennsylvania,

North Carolina, and Vermont from 1776-1777). And

the Preamble to the Bill of Rights emphasized an

intent to enshrine freedom of speech among the

individual liberties to be protected from governmental!

“misconstruction or abuse,” to instill “public confidence

in the Government” and “best ensure the beneficent

ends of its institution.” U.S. Const., amend. I-X pmblL.,

7

THE Nat’L ARCHIVES (1789), https//www.archives.gov/

founding-docwbill-of-rights-t intitoc-t] bi

to-the-bill-of-rights.

To fulfill the anti-tyranny purpose of the First

Amendment, the Founders rejected the English

common-law approach to speech, which demonstrated

suspicion of disfavored ideas and a willingness to

silence speech perceived as dangerous to society. As

Blackstone explained, expression that had an

“immoral or illegal tendency” was grounds for legal

punishment. 4 W. BLACKSTONE, COMMENTARIES ON

THE LAWS OF ENGLAND *150-52 (1783). While such

constraints on speech may have been compatible

with Britain’s parliamentary form of government,

unchecked by popular will, they could not be reconciled

with America’s new democratic model, which derived

its power from the people’s sovereignty. America’s

departure from the parliamentary model therefore

necessitated a rejection of English common-law

constraints on speech, allowing speech to flourish,

unrestrained, as a check on government power. See

THE VIRGINIA REPORT, supra, at 220-21;? see also Davip

* Some Founding Fathers resisted this notion, including John

Adams, who supported the now-infamous Alien and Sedition Acts

of 1798 that punished speech critical of the government. See

Adams Passes First of Alien and Sedition Acts, Hisrory.com (Nov.

16, 2009),

passes-first-of_alien-and-sedition-acts; An Act Respecting Alien

Enemies, Tue AVALON Prosect (July 6, 1798), http/avalon.

law.yale.edu/18th_century/alien.asp. Even at that time, however,

there was notable debate as to the Acts’ constitutionality. See

Adams Passes First of Alien and Sedition Acts, supra (noting

“strong political opposition to these acts”); THE VIRGINIA Report,

8

M. RABBAN, FREE SPEECH IN [TS FORGOTTEN YEARS, 1870-

1920 194 (1997). As James Madison, drawing on

Radical Whig philosophy, stated: “If we advert to the

nature of a Republican Government, we shall find that

the censorial power is in the people over the

government, and not in the government over the

people.” JAMES MADISON, JAMES MADISON’S “ADVICE TO

my Country” 95 (David B. Mattern ed., 1997).

Therefore, the Framers concluded that governmental

restrictions on speech, even disfavored speech, must be

rejected.

Modern First Amendment jurisprudence

reinforces the vital role of free speech as a bulwark

against tyranny and as a core value to protect. This

Court has repeatedly emphasized the importance of

free speech to political freedom and representative

government. See, eg, Janus, 138 S.Ct. at 2464

(reaffirming that freedom of speech “is essential to our

democratic form of government”). Freedom of speech is

“essential to free government” because its abridgment

would “impair{] those opportunities for public

education that are essential to effective exercise of the

power of correcting error through the processes of

popular government.” Thornhill v. Alabama, 310 U.S.

88, 95 (1940).

supra, at 219 (stating that the Acts were “positively forbidden by

one of the amendments to the Constitution”). And the Acts since

have been repudiated and viewed as an aberration from America’s

core commitment to freedom of speech. See, ¢.g., N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 276 (1964) (recognizing that “the attack

upon (the Sedition Act’s) validity has carried the day in the court

of history”).

9

This Court has stated that speech on public issues

“should be uninhibited, robust, and wide-open,” even if

it includes “vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public

officials.” Sullivan, 376 U.S. at 270. And, “lijf there is

a bedrock principle underlying the First Amendment,

it is that the government may not prohibit the

expression of an idea simply because society finds the

idea itself offensive or disagreeable.” Texas v. Johnson,

491 U.S. 397, 414 (1989). To the contrary, “a function of

free speech under our system of government is to invite

dispute. It may indeed best serve its high purpose

when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even

stirs people to anger.” Terminiello v. City of Chicago,

337 U.S. 1, 4 (1949). Even speech that advocates

violations of the law is protected if not directed at

inciting imminent lawless action. Brandenburg v.

Ohio, 395 U.S. 444, 447-49 (1969) (per curiam).

This protection of critical, disfavored, or even

offensive speech extends also to speech that

“interrupts” police officers in their duties. See City of

Houston v. Hill, 482 U.S. 451, 455, 471-72 (1987). As

this Court stated:

[I]n the face of verbal challenges to police

action, officers and municipalities must

respond with restraint. We are mindful that

the preservation of liberty depends in part

upon the maintenance of social order. But the

First Amendment recognizes, wisely we think,

that a certain amount of expressive disorder

10

not only is inevitable in a society committed

to individual freedom, but must itself be

protected if that freedom would survive.

Id. (citation omitted).

A probable-cause shield that makes it easier for

police officers to arrest speakers in retaliation for

speech that offends or upsets an officer would not only

squash expressive disorder at the cost of individual

freedom, but also silence debate on controversial issues

of public concern. That approach would result in less

protection for precisely the type of speech that needs

protection most. Because “|f|reedom to think as you

will and to speak as you think are means indispensable

to the discovery and spread of political truth,” Whitney

v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,

concurring), overruled in part by Brandenburg, 395

U.S. at 449, the Court should not adopt a test that

would insulate retaliatory motives from review,

undermine the redressability of violations of First

Amendment rights, and thereby chill speech vital to

American democracy.

Il. IMPORTING A PROBABLE-CAUSE TEST

INTO THE RETALIATORY-ARREST

CONTEXT IS UNJUSTIFIED AND

UNNECESSARY TO WEED OUT

INSUBSTANTIAL CLAIMS.

This Court need not create a new rubric for

retaliatory-arrest claims because the burden-shifting

framework articulated in Mt. Healthy, 429 U.S. at 287,

11

provides a suitable test for determining whether a

plaintiff can recover for an action allegedly taken

based on unconstitutional animus. This test has been

applied successfully by this Court to a range of

animus-infused constitutional claims and will work

equally well in retaliatory-arrest cases. The unique

characteristics that led this Court in Hartman, 547

U.S. at 259-65, to add a threshold, no-probable-cause

element to retaliatory-prosecution claims are not

present in the retaliatory-arrest context; and

procedural rules, as well as the substantive defense of

qualified immunity, already provide safeguards

against officers’ being burdened by insubstantial

cases.

A. The Default Mt. Healthy Test Works Well

When Applied To A Range Of Intent-

Based Claims And Would Be Equally

Effective For Analyzing Claims Alleging

Retaliatory Arrests.

In Mt. Healthy, this Court considered how to

evaluate whether an adverse governmental action was

taken because of an individual’s speech—in violation

of the First Amendment—or occurred for independent,

legitimate reasons. See 429 U.S. at 287. To prevail, an

individual claiming unconstitutional retaliation must

show that the exercise of a constitutionally protected

right was a “substantial” or “motivating factor” for

governmental action taken against the individual. /d.

at 287. Once the individual has made such a showing,

12

the government will be held liable unless it shows “by

a preponderance of the evidence that it would have

reached the same decision .. . even in the absence of

the protected conduct.” Jd.

This Court has applied Mt. Healthy’s burden-

shifting test over a wide range of retaliation and other

mixed-motive cases—from racial discrimination to

various employment-related claims. See Texas v.

Lesage, 528 US. 18, 20-21 (1999) (per curiam)

(applying Mt. Healthy in a racial-discrimination case

involving a university's admission decision); Bd. of Cty.

Comm'rs v. Umbehr, 518 U.S. 668, 677, 685 (1996)

(applying Mt. Healthy to claims by at-will independent

contractors alleging termination for exercising free-

speech rights); Hunter v. Underwood, 471 U.S. 222, 232

(1985) (applying Mt. Healthy to a claim that Alabama

law disenfranchising people convicted of crimes

involving moral turpitude was enacted as a result of

racial discrimination); Bd. of Educ., Island Trees Union

Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870-72 &

n.22 (1982) (plurality) (applying Mt. Healthy to a

viewpoint-discrimination case involving a_ school

board’s decision to remove certain books from

libraries); Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 264-66, 270-71 & n.21 (1977)

(applying Mt. Healthy reasoning in an equal-protection

13

case to determine that a rezoning denial was

impermissibly motivated by a discriminatory purpose).*

A test that has successfully been used to assess

government decisions regarding zoning, employment,

and university admissions, among others, is a good

place for this Court to start in determining the best

test for allegedly retaliatory arrest decisions. The Mt.

Healthy test acts to protect plaintiffs who have been

acted against on the basis of unconstitutional animus,

even when there could have been other bases for the

governmental action at issue. See, e.g., Umbehr, 518

US. at 674, 677; Hunter, 471 U.S. at 231-32. At the

same time, it prevents the imposition of liability when

governmental officials take actions they would have

taken in any event, even if there was also animus

present. E.g., Lesage, 528 U.S. at 20-21 (holding that,

under Mt. Healthy, a public university is not liable for

racial animus in its admissions process if it would have

made the same decision absent discrimination). This

* The courts of appeals have also successfully used versions

of Mt. Healthy’s but-for test to evaluate a wide range of claims

alleging that a governmental actor had an impermissible motive

for ita action. See, e.g., Maben v. Thelen, 887 F.3d 252, 267 (6th Cir.

2018) (prisoner’s punishment allegedly resulting from his verbal

complaint to a prison official); McCue v. Bradstreet, 807 F.3d 334,

338-39, 344-45 (1st Cir. 2015) (government commissioner’s alleged

use of regulations to retaliate based on a dairy farmer’s speech in

an earlier business dispute between the two); Ctr. for Bio-Ethical

Reform, Inc. v. City of Springboro, 477 F.3d 807, 817-18, 821, 823

(6th Cir. 2007) (police stop and search of a pro-life policy-and-

advocacy group’s “billboard trucks”); Graham v. Henderson, 89

F.3d 75, 79-81 (2d Cir. 1996) (prisoner’s claims that prison officials

discriminated against him based on race and speech).

14

structure, particularly when combined with the

procedural and substantive protections already given

to officers (as discussed in Part II.D, infra), strikes a

balance between preserving the right to recover for

unconstitutional retaliation and weeding out

insubstantial cases that could unduly burden officers.

See Crawford-El v. Britton, 523 U.S. 574, 591-92 (1998)

(holding that balancing the interests of plaintiffs and

defendants in retaliation cases does not necessitate

altering the cause of action).

B. Hartman’s Retaliatory-Prosecution Rule

Is Based On Unique Circumstances Not

Present In Retaliatory-Arrest Cases.

This Court’s addition of a new element and

additional pleading requirement for _retaliatory-

prosecution claims should not be imported into the

very different context of retaliatory-arrest claims.

Reaffirming that a “standard case” for

unconstitutional retaliation requires only a showing

that retaliatory animus was a but-for cause of the

challenged harm, this Court in Hartman determined

that a plaintiff in a retaliatory-prosecution case, by

contrast, must make a threshold showing of the

absence of probable cause to support the crime

charged. 547 U.S. at 265-66.

This Court identified three key characteristics of

retaliatory-prosecution cases that justified this

additional requirement: 1) the existence of probable

15

cause will always be a highly probative piece of

evidence in evaluating why a prosecution occurred; 2)

the causation analysis is uniquely complex because in

most cases the individual alleged to harbor retaliatory

animus is the same person who inflicts the challenged

harm, whereas in retaliatory-prosecution cases the

individual alleged to harbor the retaliatory animus

(typically the arresting officer) is not the person who

inflicts the challenged harm (by definition, the

prosecutor); and 3) prosecutorial decisionmaking is

afforded a strong presumption of regularity that the

Court may not lightly discard. Jd. at 261-63. None of

those characteristics are present in the distinct context

of retaliatory arrests.

The unusual causation analysis in retaliatory-

prosecution cases underscores why the departure from

Mt. Healthy in that context has no analog to warrant a

similar departure in the very different context of

retaliatory arrests. Because prosecutors enjoy absolute

immunity, Imbler v. Pachtman, 424 U.S. 409, 431

(1976), a plaintiff alleging retaliatory prosecution

must look elsewhere for recovery, suing a different

official for what this Court described as the “successful

retaliatory inducement to prosecute.” Hartman, 547

U.S. at 262. “Thus, the causal connection required here

lin the retaliatory-prosecution context] is not merely

the retaliatory animus of one person and that person’s

own injurious action, but between the retaliatory

animus of one person and the action of another.” Jd.

That is, a plaintiff “must show that the nonprosecuting

16

official acted in retaliation, and must also show that he

induced the prosecutor to bring charges that would not

have been initiated without his urging.” Jd.

Probable cause has a natural and inevitable role

to play in that inducement analysis. When an officer

arrests someone for a crime for which probable cause

exists, the existence of probable cause reinforces the

presumption of regularity that attaches to any

prosecution that follows. By contrast, if a prosecutor

brings charges despite the absence of probable cause,

that scenario suggests that something irregular must

have induced the prosecution. And that irregularity, in

turn, opens the door to considering whether the

officer's retaliatory animus motivated the

prosecutorial harm. As such, want of probable cause

“bridgels} the gap between the nonprosecuting

government agent’s motive and the prosecutor’s action,

and [it] address|es} the presumption of prosecutorial!

regularity” otherwise afforded to a prosecutor's

decisions. /d. at 263. Thus, in a retaliatory-prosecution

claim, this Court did not view it as particularly

burdensome—as a practical matter—to depart from

Mt. Healthy and require a showing that probable cause

is absent, because “[p|robable cause or its absence will

be at least an evidentiary issue in practically all such

cases” and “can be made mandatory with little or no

added cost.” Id. at 265-66.

By contrast, retaliatory-arrest cases do not involve

circumstances that justify departing from the Mt.

Healthy framework. First, the strong presumption of

regularity accorded to prosecutorial decisions does not

17

apply to police making arrests. Reichle v. Howards, 566

U.S. 658, 669 (2012). Second, the causation that must

be proved is straightforward: The governmental

actor with the allegedly retaliatory animus is the

same person who makes the challenged decision to

arrest. Indeed, in Hartman, this Court expressly

“ordinary retaliation” claims where the individual

harboring the retaliatory animus is also the individual

taking the adverse action. 547 U.S. at 259. Retaliatory-

arrest claims fit the “ordinary retaliation” model for

which the Mt. Healthy test was designed, see id., and

should remain governed by that established

framework.

Finally, the burden on a plaintiff of showing a lack

of probable cause is less cabined and more onerous in

retaliatory-arrest cases than in retaliatory-prosecution

cases. In the context of a criminal prosecution, the

government must have already committed to its theory

of criminal liability and proffered evidence of probable

cause in connection with the charging instrument. By

contrast, a police officer need not commit to a theory of

criminal liability to proceed with an arrest; indeed, the

police may not come up with a theory of criminal

liability—and therefore a theory of probable cause—

until well after litigation of a retaliatory-arrest claim

has already commenced. See Lozman v. City of Riviera

Beach, 138 S. Ct. 1945, 1950 (2018) (noting that the

city first brought up the statute forming the basis of

the city’s theory of probable cause during the

retaliatory-arrest litigation). To successfully plead that

18

there was no probable cause for arrest, the plaintiff in

a retaliatory-arrest case would theoretically have to

pore over every possible crime for which he could have

been arrested, alleging the absence of probable cause

for each of them. See infra Part III; see also Devenpeck

v. Alford, 543 U.S. 146, 153, 155 (2004) (stating that

arrests do not violate the Fourth Amendment when

probable cause exists under the facts known to the

officer, regardless of the crime ultimately charged or

even contemplated at the time of arrest). This not only

renders the existence of probable cause less probative,

but also creates a significantly greater burden on

the retaliatory-arrest plaintiff compared to the

retaliatory-prosecution plaintiff who must establish

lack of probable cause only for those crimes included in

the charging instrument.

C. The Common Law Does Not Provide

Guidance For The Elements Of A

Retaliatory-Arrest Claim Or Support

The Addition Of A No-Probable-Cause

Requirement.

Although the common law is an appropriate

starting point for “defining the contours and

prerequisites of a § 1983 claim,” common-law torts are

informative only to the extent they are analogous to—

and thus provide redress for—the deprivation of the

constitutional right at issue. See, eg., Manuel v. City

of Joliet, 137 S. Ct. 911, 920 (2017). No common-law

tort addressed violations of freedom of speech through

19

retaliatory arrests; therefore, there is no appropriate

common-law analog, and no viable common-law

rationale, for departing from the traditional Mt.

Healthy approach to animus-related § 1983 claims

merely because an arrest is at issue.

As this Court noted in Hartman, “we certainly

are ready to look at the elements of common-law

torts when we think about elements of actions for

constitutional violations, but the common law is best

understood here more as a source of inspired examples

than of prefabricated components of” constitutional

claims. 547 U.S. at 258 (citation omitted). Lacking a

common-law tort clearly analogous to a retaliatory

prosecution in violate of the First Amendment, this

Court did not look to the common law in Hartman when

defining the elements of a retaliatory-prosecution

claim. See id. at 258-59. Instead, in determining

that a plaintiff should have to prove a lack of

probable cause, the Court looked at the practical

and legal realities of prosecution-based claims, not

at prosecution-related, common-law torts. See id. at

259-65. And, as previously discussed, no comparable

realities exist in the arrest context. See Part II.B.

Just as the common law contributed no guidance

for defining the elements of a retaliatory-prosecution

claim, so too is the common law uninformative when

analyzing First Amendment rights in the arrest

context. As even petitioners acknowledge, there was

no common-law tort for retaliatory arrest in violation

of freedom of speech at the time § 1983 was enacted.

20

Pet. Br. 43 (citing Lozman, 138 S. Ct. at 1957 (Thomas,

J., dissenting)). The absence of such a tort is

unsurprising given that the American law of freedom

of speech was a conscious departure from that of the

English common law, not a continuation of it. See Part

I, supra (discussing America’s rejection of Blackstone’s

conception of speech as potentially dangerous and

worthy of punishment and America’s adoption,

instead, of a democratic model that values speech as a

reflection of popular sovereignty). Moreover, First

Amendment protection of speech had not even been

incorporated as applicable to state governments when

§ 1983 was enacted in 1871. See Gitlow v. New York,

268 U.S. 652, 660 (1925) (stating, for the first time, that

the First Amendment applies to the States).

None of the common-law torts invoked by

petitioners—malicious arrest, malicious prosecution,

and false imprisonment (Pet. Br. 43)—-were designed to

protect free-speech rights. Those torts are therefore

neither analogous to nor sufficiently protective of

speech rights to serve as models for retaliatory-arrest

claims that invoke the First Amendment and are

designed to protect speech. Section 1983 was not

intended to be a static codification of common-law

causes of action. Rehberg v. Paulk, 566 U.S. 356, 366

(2012). To the contrary, “[t/]he purpose of § 1983 would

be defeated if injuries caused by the deprivation of

constitutional rights went uncompensated simply

because the common law does not recognize an

analogous cause of action.” Carey v. Piphus, 435 U.S.

247, 258 (1978).

21

As in Hartman, this Court should look to the

practical and legal realities of the arrest context when

analyzing retaliatory-arrest crimes. But whereas the

practical and legal realities of prosecutions were

deemed to warrant proof of a probable-cause element,

Hartman, 547 U.S. at 259-65, the practical and legal

realities of officers’ authority to make arrests are very

different, and importing Hartman’s probable-cause

requirement into the arrest context would create

unwarranted obstacles to protecting and vindicating

First Amendment rights.

Fear of unmeritorious, burdensome litigation does

not warrant creating a new element for retaliatory-

arrest claims that requires plaintiffs to prove the

absence of probable cause for the arrest in question. To

do so would transform Hartman’s prosecution-cabined

exception to Mt. Healthy into the general rule for

motive-based constitutional claims—an approach this

Court has already rejected. See Crawford-El, 523 U.S.

at 592, 594 (determining that the burden on

governmental officials sued for motive-based,

constitutional violations “does not justify a judicial

revision of the law to bar claims that depend on proof

of an official’s motive” and to do so “would stray far

from the traditional limits on judicial authority”).

Indeed, when previously faced with a proposal like

22

petitioners’ that would prevent courts from admitting

evidence of subjective motive once a governmental

defendant asserted an _ alternative, objective

explanation, id. at 612 (Scalia, J., dissenting), this

Court flatly refused, explaining that it would be

“unprecedented” for the law “to immunize all officials

whose conduct is ‘objectively valid,’ regardless of

improper intent.” Jd. at 59.

The Court should be particularly wary of imposing

an additional pleading and proof requirement that

would impose “serious limitations upon ‘the only

realistic’ remedy for the violation of [a] constitutional

guarantee| |.” See id. at 591. As discussed in Part III,

infra, requiring a plaintiff alleging a retaliatory arrest

to plead and prove the absence of probable cause—

prior to permitting any consideration of the officer’s

alleged motive to retaliate for protected speech—would

drastically limit the redressability of these types of

First Amendment violations, given the vast array of

commonplace offenses that could be used by an officer

to justify a retaliatory arrest. And the addition of such

an element is not necessary because existing

substantive and procedural rules already weed out

insubstantial claims.

Insubstantial retaliatory-arrest claims—despite

their element of subjective motive—are still amenable

to dismissal or summary disposition. See id. at 593. A

retaliatory motive by itself is insufficient to establish

a claim for retaliatory arrest; a plaintiff must also

show causation. Id. So, to survive a motion to dismiss

under Federal Rule of Civil Procedure 12(b\6), a

23

plaintiff in a retaliatory-arrest case must allege

sufficient facts to allow tne court to draw the plausible

inference that officers not only harbored animus

toward the plaintiff because of the plaintiff’s

engagement in protected speech, but also that this

animus was a substantial or motivating factor for the

plaintiff’s arrest. See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is

liable for the misconduct alleged.”); Mt. Healthy,

429 U.S. at 287; see also Fep. R. Civ. P. 12(b)(6).

Merely alleging that the plaintiff engaged in protected

speech and was arrested, without additional factual

allegations to support causation, would fall short

of showing that the plaintiff had a plausible claim

for relief. See Iqbal, 556 U.S. at 678. Accordingly,

insubstantial retaliatory-arrest claims will be susceptible

to dismissal under Rule 12(b\(6), notwithstanding

allegations that an officer harbored speech-related

animus.

The but-for causation required to state a viable

claim under the Mt. Healthy test also demonstrates

why fears are unfounded that individuals engaging in

criminal conduct will be able to shield themselves from

arrest at the last minute by shouting some form of

protected speech once arrest becomes imminent. See,

e.g., Brief for the District of Columbia, et al. as Amici

Curiae Supporting Petitioner, Nieves v. Bartlett (No.

17-1174) 6-7 (noting that arrestees often criticize or

insult police while being placed under arrest). If a

24

plaintiff alleges nothing more than engagement in

protected speech while being arrested, that speech

could not plausibly have motivated the arrest, which

already was in motion when that plaintiff spoke.

Even if a complaint survives a Rule 12(b\(6)

motion, there are a number of additional ways that

insubstantial cases may be eliminated without the

burden of a full trial. Officers still have the affirmative

defense of qualified immunity in cases where the facts

would not have led a reasonable officer to believe she

was violating clearly established rights by making the

arrest, see Harlow v. Fitzgerald, 457 U.S. 800, 817-18

(1982), and a denial of qualified immunity may be

interlocutorily appealed when the ruling presents an

issue of law. See Behrens v. Pelletier, 516 U.S. 299, 311

(1996). A court can also order the plaintiff to file a

reply to the defendant’s answer or grant a defendant's

motion for a more definite statement prior to allowing

discovery. Crawford-El, 523 U.S. at 598. In the event

discovery does occur, district judges have broad

discretion to limit the scope of discovery and dictate its

course. Id. at 598-99. Furthermore, the defendant can

prevail at summary judgment by showing that no

genuine disputes of material fact would permit a juror

to conclude that the arrest would not have occurred but

for the plaintiff’s protected speech. Jd. at 593. When

the subjective-motive element of a retaliatory-arrest

claim is paired under the Mt. Healthy test with a but-

for-causation requirement, there is no need to import

an additional element requiring plaintiffs to prove

absence of probable cause for the arrest to ensure that

25

insubstantial claims can be weeded out without

subjecting officers to the burdens of trial. See id.

Il. IMPORTING A PROBABLE-CAUSE

REQUIREMENT WOULD PROVIDE

OFFICERS WITH AN AUTOMATIC ESCAPE

FROM TOO MANY RETALIATORY-ARREST

SUITS, UNDERMINING THE CAPACITY OF

§ 1983 TO PROTECT FREE SPEECH.

Police officers enjoy tremendous discretion to

arrest someone whenever there is probable cause to

believe a crime has been committed. See Atwater v.

City of Lago Vista, 532 U.S. 318, 354 (2001). That rule

applies even to misdemeanors— including those that

carry only small fines as possible penalties. See id.

(holding that arrest for a misdemeanor seatbelt offense

punishable only by a fine was supported by probable

cause and therefore did not violate the Fourth

Amendment); see also id. at 366 (O’Connor, J.,

dissenting) (observing that the decision gives police

officers “constitutional carte blanche to effect an arrest

whenever there is probable cause to believe a fine-only

misdemeanor has been committed”). Many Americans,

though they may not know or intend it, break the law

daily by committing crimes that go largely

unrecognized, such as jaywalking, exceeding the speed

limit, or failing to signal before making a turn. Even

calling in sick to work could be a federal crime. See

26

Sorich v. United States, 555 U.S. 1204, 1205-06 (2009)

(Scalia, J., dissenting from denial of certiorari) (noting

that 18 U.S.C. § 1346 arguably criminalizes a salaried

employee’s phoning in sick to attend a ball game).

Although these types of crimes may not often

result in an arrest, the fact remains that an officer

possesses the authority to arrest someone whenever

probable cause exists to believe that person committed

any crime.* See Atwater, 532 U.S. at 354. That means

that in almost any circumstance in which a person

might publicly exercise First Amendment rights—and

potentially experience retaliation for that speech in

the form of an arrest—the arresting officer could likely

identify some violation of law, however trivial, and

claim probable cause existed to justify the arrest. And

even if the arrest were motivated by the officer's

animus toward the speaker and would not otherwise

have occurred, the existence of probable cause would

defeat the First Amendment claim outright under

petitioners’ proposed test. Indeed, that would be the

result even if the speaker did not actually break any

law, since under petitioners’ rule the plaintiff would

have to prove that there was not even probable cause

to believe the infraction occurred. See, e.g., Pet. Br. 16.

* Arrests for misdemeanor crimes have become increasingly

prevalent. See Alexandra Natapoff, Misdemeanors, 85 S. Cau. L.

Rev. 1313, 1314-15 (2012) (“An estimated ten million

misdemeanor cases are filed annually, flooding lower courts, jails,

probation offices, and public defender offices.”).

27

Suppose a person brings suit because she was

arrested while handing out pamphlets on a public

street and believes the arrest was made to retaliate

against her in violation of her First Amendment rights.

Before getting an opportunity to prove that her speech

substantially motivated the officer’s arrest, she might

find herself having to prove, first, that the officer

lacked probable cause to believe that she littered (did

a pamphlet accidentally slip out of her grasp?) or

jaywalked (did she see a break in traffic and dash

across an empty intersection into a Starbucks?).°

A speaker who is arrested while driving might

have an even more difficult time showing that there

was no probable cause for the arrest. Suppose a driver

with a bullhorn mounted on his car is arrested while

broadcasting speech; or maybe there is no bullhorn,

but an arrest occurs when a bumper sticker offends the

arresting officer. The driver might have to show that

his actions gave the officer no reason to believe he was

exceeding the posted speed limit,’ was driving closer

than reasonable to another car,® failed to come to a

complete stop before proceeding through a flashing red

° Eg, Ata. Cope § 13A-7-29.

* Eg, Ga. Cope Ann. $§ 40-6-1, 40-6-92.

’ Eg, N.M. Sratr. Ann. $§ 66-7-3, 66-7-301; Tex. TRANSP.

Cope ANN. §$§ 542.301, 543.001, 545.352.

* Eg, Va. Cope Ann. §§ 46.2-816, 46.2-937.

28

signal,” failed to wear a safety belt,'° or engaged in

“careless driving.”"'

And some road-related crimes are so nebulous and

subjective that it would be nearly impossible for a

plaintiff to disprove the existence of probable cause. In

Colorado, for example, it is a misdemeanor to drive

“without due regard for the width, grade, curves,

corners, traffic, and use of the streets and highways

and all other attendant circumstances.” CoLo. Rev.

Strat. ANN. § 42-4-1402. It would not be difficult for an

officer to mask a retaliatory motive by asserting

probable cause to arrest the speaker for driving

without due regard for the grade of the street. See id.

Whereas the Mt. Healthy test would require the officer

to show he would have made that same arrest

regardless of the driver’s speech, see 429 U.S. at 287,

petitioners’ probable-cause test would require

dismissal of the claim without any consideration of the

role speech played in the officer’s decision.

Additional examples abound. A person exercising

First Amendment rights at a rally who is then arrested

while riding her bicycle home might have to plead that

the officer lacked probable cause to believe she was

not riding as far to the right of the roadway as

* Eg, 8.D. Copirtep Laws § 32-38-7.

Eg, Tex. TRANSP. Cope ANN. § 545.413.

" Eg, N.J. Srar. ANN. §§ 39:4-97, 39:4-104; N.M. Srar. ANN.

§ 66-8-114.

29

practicable,"* rode more than two abreast," or failed to

give a hand signal continuously during the last 100

feet traveled before a turn or failed to continuously use

a hand signal while stopped and waiting to turn."

Many of these rules—like their motor-vehicle

equivalents, disorderly conduct, or even littering

violations—give officers wide latitude to make

subjective judgment calls when it comes to arrest. And

that latitude, under petitioners’ probable-cause

proposal, would make it easy for an officer to defeat a

retaliatory-arrest claim by articulating a belief that

the rally speaker faile* to continuously use a hand

signal while stopped on her bike, waiting to turn. A

§ 1983 claim alleging an arrest made in retaliation for

protected speech should not be dismissed based

exclusively on the speaker’s biking conduct without

any consideration of the biker’s speech.

To hold that an officer, even one patently acting on

retaliatory animus, can escape liability merely by

showing that he had probable cause to believe the

plaintiff committed one of the crimes above, or one of

the hundreds (if not thousands) of other potential

misdemeanors, see Natapoff, supra, at 1314-15, would

make it too easy for officers to escape liability for

retaliatory arrests. Although this Court determined

" Eg. Ga. Cope Ann. §§ 40-6-1, 40-6-294(b); W. Va. Conve

$§ 17C-11-1, 17C-11-SK(a).

" Eg Ga. Cope ANN. §§ 40-6-1, 40-6-294(c); W. Va. Cone

$§ 17C-11-1, 17C-11-Ke).

“ Eg, 8.D. Copirrep Laws § 32-20B-6.

30

that adding a probable-cause element to retaliatory-

prosecution claims would neither burden plaintiffs nor

diminish §1983’s capacity to vindicate First

Amendment rights, see Hartman, 547 U.S. at 265-66,

the same cannot be said in the context of retaliatory

arrests. To protect freedom of speech and ensure that

speakers have a meaningful opportunity to seek

redress for retaliatory arrests in violation of the First

Amendment, this Court should reject petitioners’

probable-cause proposal and continue to apply the

tried-and-true Mt. Healthy framework that

successfully balances the interests of speakers and

governmental actors when animus-based claims arise

in a wide variety of constitutional contexts.

e.

A

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

JOHN W. WHITEHEAD ERIN GLENN BUSBY

DouG.Las R. McKusick Counsel of Record

THE RUTHERFORD INSTITUTE LSA R. Eskow

923 Gardens Blvd. 727 East Dean Keeton St.

Charlottesville, VA 22901 Austin, TX 78705

(434) 978-3888 (713) 966-0409

ebusby@law.utexas.edu