PBCBA BAR BULLETINS pbcba_bulletin_Nov. 2019 | Page 13

DIVERSITY CORNER
THE SHIFTING SANDS OF FIRST AMENDMENT
RETALIATION CLAIMS: LOZMAN TO NIEVES
MASIMBA M. MUTAMBA
Of all the freedoms in the Bill of Rights,
the First Amendment arguably enjoys the
broadest support. Yet, recent developments
in this realm offer good perspective on how
even this important check on state power
is becoming harder to employ.
The Supreme Court has held that “the First
Amendment bars retaliation for protected
speech,” Crawford-El v. Britton, 523 U.S.
574, 592 (1998). Nevertheless, in Reichle v.
Howards, 566 U.S. 658, 663 (2012), Justice
Thomas’ opinion reversed the denial of
qualified immunity to defendants because
“it was not clearly established that an
arrest supported by probable cause could
violate the First Amendment.” Id. at 663.
FANE LOZMAN AND RIVIERA BEACH
Last summer, after having previously
decided a separate admiralty jurisdictional
question in favor of Fane Lozman—a self-
proclaimed “persistent and tenacious
underdog” —against Riviera Beach, Florida,
the Court returned to the case because
of Lozman’s claims that his subsequent
arrest was retaliation for his litigation
and public criticism of city officials. This
time, the Court considered “whether the
existence of probable cause defeats a First
Amendment claim for retaliatory arrest
under §1983.” Lozman v. City of Riviera
Beach, 138 S. Ct. 1945, 1951 (2018). Justice
Kennedy’s opinion declared that, “when
retaliation against protected speech is
elevated to the level of official policy, there
is a compelling need for adequate avenues
of redress … Lozman need not prove the
absence of probable cause to maintain a
claim of retaliatory arrest against the City.”
Id. at 1954-55. In dissent, Justice Thomas
argued that “look[ing] to the common-law
torts that provid[e] the closest analogy to
[a civil rights] claim…19th-century courts
emphasized the importance of probable
cause.” Id. at 1956-57 (internal quotations
omitted).
NIEVES V. BARTLETT: A SHIFT
Notwithstanding its Lozman decision, the
Court once again took up this question
the very next term. In Nieves v. Bartlett,
139 S. Ct. 1715, 1722 (2019), the Court
announced that “Lozman involved unusual
circumstances in which the plaintiff was
arrested pursuant to an alleged ‘official
municipal policy’ of retaliation.” This time,
Chief Justice Roberts’ examination of “a
more representative case” of retaliatory
arrest suits, id., has led to a fractured
opinion—three concurrences
and one
dissent —in contrast to the 8-1 Lozman
decision.
In Nieves, the Ninth Circuit had reversed
the district court’s summary judgment
ruling for defendants, which had held
that probable cause for plaintiff’s arrest
(disorderly conduct and resisting arrest)
did not defeat plaintiff’s retaliation claim.
Plaintiff had alleged that his arrest
actually stemmed from his refusal to speak
with defendants, who were attempting to
deter underage drinking at a week-long
Alaskan festival. Siding with the officers,
the Supreme Court reversed the Ninth
Circuit and, in so doing, embraced the
higher retaliatory prosecution standard
of Hartman v. Moore, 547 U.S. 250, 265-66
(2006). Chief Justice Roberts reasoned
that, “[b]ecause of the ‘close relationship’
between [retaliatory prosecution and
retaliatory arrest] claims, their related
causal challenge should lead to the
same solution: The plaintiff pressing a
retaliatory arrest claim must plead and
prove the absence of probable cause for
the arrest.” Nieves, 139 S. Ct. 1715, 1724
(emphasis added). The inevitable result
here is that most retaliatory arrest claims,
those involving an arrestee’s claim against
an officer, are now less likely to survive
summary judgment.
CONCLUSION
It should strain credulity that the
sustainability of a crucial civil rights claim
can shift so radically in less than a year: the
Court went from saying that probable cause
is not necessarily fatal to First Amendment
retaliatory arrest claims to determining
the opposite for most cases in which these
claims arise. Justice Kennedy’s retirement
and Justice Kavanaugh’s ascension are
the only changes to the Court during the
PBCBA BAR BULLETIN
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344 days between Lozman and Nieves.
This brief 344-day period ironically
casts a long pall over the steadfastness
of First Amendment, and perhaps other,
constitutional protections.
Adam Liptak, “A Persistent Gadfly Wins Again in the
Supreme Court.” The New York Times, Jun. 18, 2018,
available at https://www.nytimes.com/2018/06/18/
us/politics/a-persistent-gadfly-wins-again-in-the-
supreme-court.html.
2
See Lozman v. City of Riviera Beach, 568 U.S. 115,
133 (2013).
3
Justices Thomas, Gorsuch, and Ginsburg
4
Justice Sotomayor.
1
Masimba Mutamba is the Human Rights
Defense Center’s (“HRDC's”) inaugural
William A. Trine fellow and a staff attorney
who litigates prisoner rights cases. He
regularly represents HRDC’s publishing
project in free speech and press freedom
cases against federal, state, and municipal
prison and jail officials. Additionally, he
litigates cases to enforce government
transparency under state public records
statutes and the Freedom of Information
Act (FOIA). Masimba graduated magna
cum laude from the University of Miami
School of Law and obtained a Master
of Laws (LLM), with distinction, from
the University of Glasgow in the United
Kingdom.