Free Speech

Nieves v. Bartlett and Allegedly Retaliatory Arrests Based on Speech Alone

The Sixth Circuit suggests an important limit on the Supreme Court's Nieves precedent, though it doesn't decide the question.

|The Volokh Conspiracy |

From Novak v. City of Parma, decided today by the Sixth Circuit (opinion by Judge Amul Thapar, joined by Judges Gilbert Merritt and Chad Readler):

The Supreme Court held recently in Nieves v. Bartlett that to bring a First Amendment retaliatory arrest claim, a plaintiff must generally show that there was no probable cause for the arrest…. [But] this case may not be subject to the general rule of Nieves because the sole basis for probable cause was speech. Besides posting [a parody of a police department Facebook page] to his Facebook page, Novak committed no other act that could have created probable cause.

In other First Amendment retaliation cases on point, by contrast, the defendant's conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something. See, e.g.Nieves v. Bartlett (defendant made remarks to police officers (protected speech) and acted aggressively toward them in an intoxicated state (unprotected conduct)); Reichle v. Howards (2012) (defendant made political remarks (protected speech) and unlawfully touched the Vice President (unprotected conduct)); Swiecicki v. Delgado (6th Cir. 2006), 463 F.3d at 491–92 (defendant made comments to the officer (protected speech) and engaged in disorderly conduct while intoxicated (unprotected conduct)). Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.

This is important because in Nieves and its predecessors, the Court based its reasoning on the thorny causation issue that comes up in cases with both protected speech and unprotected conduct. The idea is that in cases where the plaintiff both did something and said something to get arrested, the factfinder will not be able to disentangle whether the officer arrested him because of what he did or because of what he said. "[R]etaliatory arrest cases … present a tenuous causal connection between the defendant's alleged animus and the plaintiff's injury."  For example, in [an earlier precedent], the Court held there was no retaliation "if the same decision would have been reached absent [plaintiff's] protected speech."  Here, that inquiry gets us nowhere because "absent [Novak's] protected speech," there would be no basis for probable cause. So, in this case, the causal connection is not so tenuous. And the reason for requiring that plaintiff show an absence of probable cause where probable cause is based only on protected speech is not so clear.

Second, this case strikes at the heart of a problem the Court has recognized in the recent retaliation cases. "[T]here is a risk that some police officers may exploit the arrest power as a means of suppressing speech."  The Court also recognized this risk in Nieves.… Novak's case is prime ground for the pretext that the Supreme Court has worried about.

For one, potential probable cause was based on protected speech alone. That is not dispositive because the officers' consideration of his protected speech may have been "wholly legitimate." But the fact that the arrest was made based only on protected speech at least raises a concern that probable cause "does little to prove or disprove the causal connection" between Novak's criticism of the police and his arrest….

Where a statute gives police broad cover to find probable cause on speech alone, probable cause does little to disentangle retaliatory motives from legitimate ones. Thus, this case raises new questions under Nieves. It may be that, based on the Supreme Court's reasoning in that case and others, the general rule of requiring plaintiffs to prove the absence of probable cause should not apply here. We need not decide that now….

UPDATE: I'm afraid I erroneously omitted the last paragraph when I originally posted this; thanks to commenter Noscitur a sociis for pointing this out.

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  1. In case it’s not obvious from the quoted portion (it wasn’t to me), this is Judge Thapar speculating about how the law will (should?) develop in the future, and is not part of the holding of the case.

    I find it pretty unconvincing. To the extent the Nieves is correctly decided, I don’t see why the fact that probable cause was based on speech would change the analysis. The real problem with this case, it seems to me, is that it seems like the officers almost certainly did not have probable cause. But if they did — if, for instance, the arrest was based on the defendant making a clearly unprotected threat — I don’t see why there’s any reason to treat the situation differently.

    1. IANAL, but isn’t the distinction between real probably cause and fake probable cause; that the probably cause the police depended on was not upheld by the court?

      1. 2/3, I probably spelled that wrong 🙂

    2. The probable cause section of the opinion (section b) concludes with:

      “To sum up, to resolve the retaliation claim, the factfinder below will have to decide: (1) whether Novak’s Facebook page was a parody, and thus protected speech, and; (2) whether the officers had probable cause to arrest Novak under the Ohio statute. If the officers did not have probable cause, they are not entitled to qualified immunity, and Novak can attempt to show the arrest was retaliatory. If the officers did have probable cause, they are entitled to qualified immunity even if Novak’s page was protected speech because the law at the time did not clearly establish that charging Novak under the statute would violate his constitutional rights.”

      I find it hard to believe that it won’t be decided that the officers had probable cause under the broad definition of the statute in question. Likewise, it seems unlikely that it was “clearly established” that a Facebook page posing as parody, and the subsequent confusion it left in some readers, did not constitute probable cause. Officers get qualified immunity.

      1. My point is not whether their probable cause matched the statute; my point is that if the statute is unconstitutionally broad, then the probable cause it allows is not probable cause.

        1. “…my point is that if the statute is unconstitutionally broad, then the probable cause it allows is not probable cause.”

          It’s an excellent point; however, since SCOTUS determined ignorance of the law is okay for cops (Heien v. North Carolina), it’s no stretch that cop ignorance of a law’s constitutionality will be a-okay too because of that precedent, cop good faith, with some FYTW thrown in for good measure.

          FFS cops cannot be expected to assess constitutionality or be knowledgeable about the law when Them are preoccupied about getting home safe. Too many balls in the air to juggle all that. And you know whose balls matter most, amirite.

          #BlueBallsMatterMost

          1. “, it’s no stretch that cop ignorance of a law’s constitutionality will be a-okay too because of that precedent, cop good faith, with some FYTW thrown in for good measure. ”

            Judges don’t like to throw out convictions of people who are actually guilty unless there’s some serious wrongdoing, by which I mean intentional violations of rights.

          2. I’m not certain Heien applies but I’m not sure it doesn’t, either. Some courts and commenters interpreting Heien have required statutory ambiguity to forgive a mistake of law. It’s hard to see how that applies when the law in question is unconstitutional. And isn’t that what this case is about? If the law in question is unconstitutional, probable cause analysis is (or should be) very different.

        2. I agree that if the statute is unconstitutional, the probable cause it allows is not probable cause. But I really don’t think we can expect cops to figure out that a statute is unconstitutional. I also don’t think we want cops deciding not to enforce a statute because they think the statute is unconstitutional.

          1. “I also don’t think we want cops deciding not to enforce a statute because they think the statute is unconstitutional.”

            Why not?

            Take this exact case. Why would anybody think it’s reasonable to investigate this guy’s website with police resources?

          2. ” I also don’t think we want cops deciding not to enforce a statute because they think the statute is unconstitutional.”

            The police department takes its cues from the prosecutors’ office. The prosecutors learn about things the cops are doing that they shouldn’t be because convictions get overturned. So they tell the brass how and why the conviction was overturned. The brass then tells the department’s training officers to adjust the training the officers receive.

            The speed of the process varies from agency to agency… some roll out new training as soon as possible, and some do it glacially because bringing cops in for training takes them off the streets.

            On the streets, cops apply judgment to all kinds of things… some are better than others, based on temperament, training, and experience.

      2. To be probable cause, there has to be a crime and a reason to believe that the subject committed (or is about to commit) that crime.. Since the fact that parody is protected speech is settled law, it should be known that there is no (valid) law against operating a website that is a parody..

        So they’d have to have probable cause that plaintiff did something besides operating the website to violate the law. He didn’t, so there shouldn’t be probable cause showing that he did.

        If I were on that jury, Officer Tweedledum and Tweedledummer are in a bit of a pickle, and the department that ordered them to work on this travesty, too.

        1. I don’t think that’s a totally unreasonable solution (it’s certainly more appealing to me than the “speech only” exception to Nieves being proposed), but it’s a solution that the sixth circuit expressly rejected, as illustrated by the quote offered by QuantumBoxCat.

        2. So if I create and operate a website that parodies child pornography sites and depicts such images, I’m in the legal clear because the site is a parody? I certainly hope that’s not the case … but, “there is no (valid) law against operating a website that is a parody,” so I guess I’m in the clear.

          I’ll be sure to cite your post in my legal defense.

          1. If it depicts such images, it’s a child porn site, not a parody of a child porn site.

            Where do I send my bill to your lawyers?

          2. Quantum is attempting to be clever. Failing miserably, of course. People are prosecuted, NOT for advocating for the legal right of adults to have sex with children (disgusting–but perfectly permissible–issue advocacy). So, it’s something that can be parodied with no problem. Think of the old “South Park” episode, parodying NAMBLA.

            People are prosecuted for the visual depiction of pedophilia…and for sexualized photos and videos of children. So, the fact that a website may indeed be a parody of something does not mean it will not be a criminal offense…it’s your use of kiddie porn in your parody website that will land you in jail. Will a reasonable viewer recognize those videos and photos as depicting children? If ‘yes,’ then you may have your answer.

            (It’s an interesting question: What happens in regards to, say, videos that *seem* to clearly depict a young child having sex with an adult, but it’s 100% a computer creation/manipulation? Or, when adult sex actors are used, but are later digitally manipulated to appear much younger than age 18? As computer technology advances, I’d be surprised not to see cases address this . . . and I’d expect to see law review articles address this brave new world.)

            1. I don’t know if it has come up yet in the field of digital video, but it has in the case of digitally-altered still images.

      3. “I find it hard to believe that it won’t be decided that the officers had probable cause under the broad definition of the statute in question.”

        Unless on remand the trial court determines that the Ohio statute is overbroad. That’s the point.

    3. Noscitur a sociis: Uh-oh, I erroneously omitted the paragraph that makes clear what you point out in your first paragraph — just updated the post, with thanks to you.

    4. Maybe I missed a point somewhere, but I didn’t find this so puzzling. The proposition isn’t that probable cause becomes irrelevant, but that when the accused acts consist solely of protected speech the burden should shift to the police.

  2. I would be inclined to be more favorable to qualified immunity here.

    Since the defendant was acquitted, it appears there were two findings of probable cause here, one for the warrant and one at arraignment. And the police arrested him for violating a statute which covered what he did.

    So the statute was constitutional. But the mistaken use of a statute which later turns out to be unconstitutional is a classic qualified immunity situation. I don’t think this can be stretched into a claim the police retaliated against him for his speech. The plaintiff’s real beef is with the state and its statute, not the police who merely enforced the statute.

    This is not a situation where the police shot somebody without provocation. They applied a facially valid statute, they got a facially valid warrant, they made a proper arrest, the defendant was declared fit for trial, after all this the jury acquitted and the 6th circuit disagreed with the state courts. I don’t see the police as being quite the bad guys here in the way the Conspiracy seems to.

    1. This is not a situation where the police shot somebody without provocation.

      No, this is a situation where the police arrested someone solely for his speech mocking them, which no reasonable person could think was permissible.

      And what you miss is that he also alleges that they lied about their operations being disrupted.

      1. “[T]his is a situation where the police arrested someone solely for his speech mocking them, which no reasonable person could think was permissible.”

        Except the Magistrate who signed the arrest warrant. I guess he or she is not a “reasonable person.” Or, more likely, a bureaucratic hack.

        1. …and a judge denied (Im presuming defense counsel has half a brain) a motion to dismiss…and, a motion for directed verdict.

    2. Disclosure: I am outraged by what the Parma Police Department did here.

      I think the distinction is that the finding of probable cause for issuance of the warrant and at arraignment is an ex parte communication where (theoretically) the State should be giving a full disclosure of the facts, including those disfavorable to their position. If the State presents facts to establish probable cause and suppresses facts the would show lack of probable cause, the State might not have probable cause in-fact. Which may also show retaliatory motive.

  3. The real breakdown here, IMO, was the idiot Magistrate who signed two warrants, a search warrant and an arrest warrant. That is the point where someone independent of the police is supposed to scrutinize them and say no. Instead, it appears that they just rubber-stamped what the cops wanted.

  4. Perhaps the solution to the problem of abusive policing will, in this context as with others, be largely practical: Attracting a better class of person to law enforcement and administering effective accountability. Fewer intolerant authoritarians looking for respect they fail to generate without a badge and gun; better temperament; better training; better equipment; better working conditions (including compensation); better oversight.

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