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 13 344 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.