Zoe Brown | Determining The Evidentiary Standard for FARA Claims

BACKGROUND

The First Amendment to the United States Constitution protects individuals’ rights to free speech and freedom of religion. As such, the U.S. government is generally not permitted to punish individuals for exercising First Amendment free speech. This includes arrests for criminal activity made by a police officer to retaliate against an individual for their protected speech. Under 42 USC §1983, an individual can bring a civil suit for wrongful arrest, including retaliatory arrest, in violation of their First Amendment rights if there is a “but-for” causal connection between the officer’s retaliatory animus and the individual's speech. Kennedy v. City of Villa Hills, 635 F.3d. 210, 217 (6th Cir. 2011).

Usually, a person cannot successfully make a First Amendment retaliatory arrest (FARA) claim if the police officer had probable cause for the arrest because probable cause defeats the causal connection requirement for FARA. However, probable cause may not defeat a FARA claim in a situation where the officer has the discretion to arrest but usually does not exercise this discretion.  Nieves v. Bartlett, 139 S.Ct. 1715, 1727 (2019). In those situations, the plaintiff must show that, but for the protected speech, the arrest would not have occurred even though the officer had probable cause.

In Nieves, the Court described the standard for a FARA case where the officer had probable cause for an arrest: “...we conclude that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. at 1727. Thus, Nieves established that the subjective evidence of the officer’s intent is irrelevant in determining whether an individual has a legitimate FARA claim. Instead, the Nieves Court held that the evidence required to support a FARA claim must be objective. However, the Nieves Court did not establish whether a successful FARA claim required that evidence be comparative. As a result, federal circuit appeals courts have interpreted Nieves’ objective evidence standard differently. Some circuit courts have interpreted the Nieves standard to be comparative.  In the courts that require comparative evidence, an individual asserting a FARA claim must present evidence to the court that demonstrates other individuals engaged in the same criminal conduct but not First Amendment-protected speech were not arrested.

ISSUE

In a First Amendment retaliatory arrest claim, should a plaintiff be required to show comparative or solely objective evidence to prove an officer abused discretion in making an arrest despite the presence of probable cause?

THE SPLIT

Federal circuit courts of appeal are divided on to what extent probable cause should bar a First Amendment retaliatory arrest claim and how to interpret the narrow exception laid out by the U.S. Supreme Court in Nieves. Id. at 1715. The Fifth Circuit interpreted Nieves to mean a plaintiff is always barred from bringing a FARA claim when probable cause is present except if the plaintiff provides comparative evidence that similarly situated individuals were not arrested for the same conduct when they were not engaged in protected speech. Gonzalez v. Trevino, 42 F.4th 487, 492 (5th Cir. 2022). In contrast, the Seventh Circuit has ruled that when a plaintiff brings a FARA claim where the officer did have probable cause, Nieves only requires objective evidence, not comparative evidence. Lund v. City of Rockford, Ill., 956 F.3d 938, 945 (7th Cir. 2020). Lastly, the Ninth Circuit ruled that in a FARA claim where the officer had probable cause for the arrest, the plaintiff must show objective evidence. However, the court described objective evidence the same way the Fifth Circuit described comparative evidence. Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022).

5th Circuit

The Fifth Circuit took the narrowest approach when it reversed a judgment in the plaintiff’s favor.  Gonzalez, 42 F.4th at 494. In 2019, Gonzalez was elected a member of the city council for Castle Hills, Texas, and began a petition that called for the removal of the city manager. Id. at 489. At her first city council meeting, it appeared Gonzalez had accidentally put the petition with her belongings. When the mayor confronted her, she apologized and returned the petition to him. Id. at 490. Following that incident, the mayor enlisted members of police and city officials to arrest Gonzalez for a violation of the Texas Penal Code, which prohibits individuals from intentionally concealing or removing a government record. Id. Gonzalez was arrested and sued the city officials responsible for her arrest under a FARA claim. Id.

Gonzalez did not contest that the officer had probable cause to arrest her but claimed that her case fell into the narrow exception in Nieves. Id. at 491. She claimed that the officer abused his discretion at the behest of the city officials to retaliate against her for her petition to remove the city manager. Id. Gonzalez provided objective evidence that despite the presence of probable cause, her arrest would not have occurred but for her involvement in protected speech. First, Gonzalez presented evidence that in the last ten years, no person in Bexar County had ever been arrested under that section of the Texas Penal Code for concealing a non-binding document.  Id. at 505. Furthermore, she showed that nearly all the prosecutions under that statute were related to fake government IDs. Id. However, she failed to produce comparative evidence which showed most individuals were not arrested for mistakenly concealing a non-binding government record when they were not participating in protected speech. Id.

The Court held that Nieves required Gonzalez to provide comparative evidence to have a successful FARA claim because the officer had probable cause. The opinion stated that the plain language in Nieves clearly and explicitly required comparative evidence for a FARA claim in the presence of probable cause. Id. at 493. However, the dissent sided with the Seventh Circuit, arguing that Nieves requires only objective evidence that the arrest would not have occurred but for the speech rather than comparative evidence. Id. at 505.

7th Circuit

The Seventh Circuit took a different approach when they reviewed a case involving a reporter being arrested shortly after discovering an undercover police operation to arrest sex workers. Lund, 956 F.3d at 941. Police saw Lund taking pictures of undercover officers posing as sex workers and told him to stop or they would arrest him for obstructing a police investigation. Lund drove away on his motorized bike and shouted, “goodbye, officers.” The police followed him several blocks and arrested him for driving a motor vehicle in the wrong direction on a one-way street. Id. at 942.

Lund argued that despite the presence of probable cause, he had a valid FARA claim because the officers abused their discretion in arresting him to retaliate against him for his speech. Id. at 945. The court held that Nieves only required Lund to bring objective evidence that the officers abused their discretion in arresting him. Id. Specifically, the opinion uses Justice Gorsuch’s concurrence in Nieves to explain why the Supreme Court only meant for objective evidence to be required. Gorsuch said he did not believe the majority adopted the strict rule that a plaintiff who cannot prove probable cause has to bring comparative evidence. Nieves, 139 S.Ct. at 1734. Ultimately, the Seventh Circuit rejected Lund’s argument simply because he failed to provide evidence of any kind that the officers abused their discretion. Lund, 956 F.3d at 945.

9th Circuit

The Ninth Circuit faced a FARA claim where probable cause existed when police reform activists were arrested for chalking under a statute that prohibited graffiti. Ballentine, 28 F.4th at 60. The arresting officer had encountered the plaintiffs in front of the police station on more than one occasion writing anti-police slogans in chalk on the sidewalk. Id. After two months of repeated interactions between the officer and the plaintiffs, the officer arrested the plaintiffs while chalking at the courthouse for “conspiracy to commit placing graffiti and placing graffiti on or otherwise defacing property.” Id. The District Attorney dropped the charges because of the inconsistency of police communication and actions toward the plaintiffs. Id.

The plaintiffs then filed a FARA claim which claimed the officer arrested them in retaliation for their speech which was critical of the police. They conceded the officer had probable cause to stop them but argued that their case fit into the Nieves exception. Id. at 62-63. In accordance with the Nieves ruling, the plaintiffs brought evidence that no other individuals at the courthouse were also arrested or given a citation on the day they were arrested. Furthermore, evidence from the trial revealed that no individual has ever been arrested for chalking on a sidewalk under Nevada’s graffiti law. Id.

The Ninth Circuit held that the plaintiffs had met their burden of proof and showed enough objective evidence to prove the causal connection between the officer’s animus and the arrest. Id. Specifically, the plaintiffs provided adequate objective evidence that similarly situated individuals also engaged in chalking were not arrested when they were not involved in the same protected speech as the plaintiffs. The court explains the evidence required in the Nieves exception, saying, “Additionally, the Plaintiffs presented evidence that other individuals chalking at the courthouse at the same time as Plaintiffs were not arrested. This is the kind of ‘objective evidence’ required by the Nieves exception…” Id. It appears this court is requiring plaintiffs to provide comparative evidence by signaling that Nieves requires a “kind” of objective evidence but fails to specifically use the term comparative evidence.

LOOKING FORWARD

While uncertainty remains as to how the circuit courts will interpret the Nieves exception, the Fifth and Ninth Circuit decisions indicate courts are leaning toward interpreting Nieves as requiring comparative evidence in a FARA claim where the officer had probable cause to make an arrest. However, the Seventh Circuit’s decision in support of the lower standard of only objective evidence was not only based on that court’s interpretation of Nieves but also Justice Gorsuch’s concurring opinion in Nieves. If the Supreme Court revisits the Nieves exception, it may give weight to Justice Gorsuch’s concurring opinion and clarify that the standard for evidence in a FARA claim where the officer had probable cause for the arrest is only objective evidence, and comparative evidence is not required.