Page 30 - TPA Journal July August 2024

A retaliatory arrest claim requires that (1) Plaintiffs situated individuals not engaged in the same sort of
were engaged in constitutionally protected activity, protected speech had not been.” Plaintiffs contend
(2) Defendants caused them to suffer an injury that that other armed protestors were not arrested
would chill a person of ordinary firmness from because the officers personally opposed “the
continuing to engage in that activity, and (3) message that Everard and Grisham conveyed.”
Defendants’ adverse actions were substantially However, as the magistrate judge noted, other
motivated by the Plaintiffs’ exercise of protestors were arrested, but they simply did not
constitutionally protected conduct. The magistrate join in this lawsuit. Further, caselaw does not
judge recognized that Plaintiffs met prong one by require that the officers seize all “otherwise
establishing a “constitutionally protected activity: similarly situated individuals.” Rather, “where
filming the Defendant officers” and that “filming officers have probable cause to make arrests” they
police officers engaged in their professional duties may not disproportionately or unfairly “exercise
has been a clearly established right in the their discretion not to do so.” The “no-probable-
Fifth Circuit since 2017[.]” cause requirement” applies in the instant case
because Plaintiffs have not presented objective
Still, a retaliatory criminal prosecution “in violation evidence, beyond conclusory statements, that they
of the First Amendment [is] actionable only if a were arrested “when otherwise similarly situated
plaintiff can also prove . . . absence of probable individuals not engaged in the same sort of
cause to prosecute.” Additionally, in Nieves v. protected speech had not been.” Consequently, the
Bartlett, the Supreme Court emphasized that a officers are entitled to qualified immunity because
“plaintiff pressing a retaliatory arrest claim” based there was probable cause to arrest Everard and
on speech protected by the First Amendment Grisham pursuant to a presumptively constitutional
generally “must plead and prove the absence of and enforceable statute. And, as the record reflects,
probable cause for the arrest.” Moreover, the the officers were objectively reasonable in
Nieves Court established that plaintiffs in believing that such probable cause existed.
retaliatory prosecution cases must “show more than
the subjective animus of an officer and a Whether probable cause exists is based on what an
subsequent injury; plaintiffs must also prove as a objectively reasonable officer would perceive
threshold matter that the decision to press charges under the totality of circumstances. The offense
was objectively unreasonable because it was not of disorderly conduct under Texas Penal Code §
supported by probable cause.” Here, as in Nieves, 42.01(a) necessitates displaying a firearm (or other
the officers had probable cause to make the arrests deadly weapon), intentionally or knowingly, and in
for disorderly conduct and resisting arrest, thus a manner calculated to alarm. At the time of the
precluding the arrestees’ retaliatory arrest claims. incident, the text of the Texas statutes governing
Still, on appeal, Plaintiffs argue that “probable disorderly conduct and interference with public
cause does not foreclose this lawsuit since Grisham duties and Texas state caselaw interpreting the
and Everard were treated differently from others relevant statutes supported that there was probable
because of their First Amendment activities.” cause to arrest Everard and Grisham.
Notably, the Nieves Court did delineate a carveout
to the probable cause prerequisite in holding that a Although Plaintiffs maintain that their objective on
plaintiff asserting a retaliatory arrest claim does not March 27, 2018 was to educate the public, not to
have to establish the absence of probable cause alarm it, the magistrate judge held that, considering
“when [the] plaintiff presents objective evidence the totality of circumstances, the officers made an
that he was arrested when otherwise similarly entirely reasonable inference that probable cause

26 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal