Page 40 - TPA Journal November December 2024

knowledge, or of which he has reasonably trust- ecution cases must “show more than the subjec-
worthy information, are sufficient to occasion a tive animus of an officer and a subsequent injury;
person of reasonable prudence to believe an plaintiffs must also prove as a threshold matter
offense has been committed.” that the decision to press charges was objectively
“The qualified immunity inquiry includes two unreasonable because it was not supported by
parts”: (1) “whether the officer’s alleged conduct probable cause.”
has violated a federal right” and (2) “whether the Here, as in Nieves, the officers had probable cause
right in question was ‘clearly established’ at the to make the arrests for disorderly conduct and
time of the alleged violation, such that the officer resisting arrest, thus precluding the arrestees’
was on notice of the unlawfulness of his or her retaliatory arrest claims. Still, on appeal, Plaintiffs
conduct.” To determine clearly established law argue that “probable cause does not foreclose this
we look to cases decided at the “at the time of the lawsuit since Grisham and Everard were treated
violation.” “The law can be clearly established differently from others because of their First
despite notable factual distinctions between the Amendment activities.” Notably, the Nieves Court
precedents relied on and the cases then before the did delineate a carveout to the probable cause pre-
Court, so long as the prior decisions gave reason- requisite in holding that a plaintiff asserting a
able warning that the conduct then at issue violat- retaliatory arrest claim does not have to establish
ed constitutional rights.” the absence of probable cause “when [the] plain-
Neither this court nor the Supreme Court has held tiff presents objective evidence that he was arrest-
that officers cannot execute their law enforcement ed when otherwise similarly situated individuals
duties while someone is engaging in speech, not engaged in the same sort of protected speech
where probable cause exists. Rather, officers can- had not been.” Plaintiffs contend that other armed
not execute their law enforcement duties to search protestors were not arrested because the officers
and seize in retaliation of speech or as imposed personally opposed “the message that Everard and
censorship. Grisham conveyed.” However, as the magistrate
Plaintiffs argue that Defendants “retaliated against judge noted, other protestors were arrested, but
them for peacefully exercising their First they simply did not join in this lawsuit. Further,
Amendment right to protest the Ordinance.” A caselaw does not require that the officers seize all
retaliatory arrest claim requires that (1) Plaintiffs “otherwise similarly situated individuals.” Rather,
were engaged in constitutionally protected activi- “where officers have probable cause to make
ty, (2) Defendants caused them to suffer an injury arrests” they may not disproportionately or unfair-
that would chill a person of ordinary firmness ly “exercise their discretion not to do so.” The
from continuing to engage in that activity, and (3) “no-probable-cause requirement” applies in the
Defendants’ adverse actions were substantially instant case because Plaintiffs have not presented
motivated by the Plaintiffs’ exercise of constitu- objective evidence, beyond conclusory state-
tionally protected conduct. ments, that they were arrested “when otherwise
Still, a retaliatory criminal prosecution “in viola- similarly situated individuals not engaged in the
tion of the First Amendment [is] actionable only if same sort of protected speech had not been.”
a plaintiff can also prove . . . absence of probable Consequently, the officers are entitled to qualified
cause to prosecute.” Additionally, in Nieves v. immunity because there was probable cause to
Bartlett, the Supreme Court emphasized that a arrest Everard and Grisham pursuant to a pre-
“plaintiff pressing a retaliatory arrest claim” based sumptively constitutional and enforceable statute.
on speech protected by the First Amendment gen- And, as the record reflects, the officers were
erally “must plead and prove the absence of prob- objectively reasonable in believing that such prob-
able cause for the arrest.” Moreover, the Nieves able cause existed.
Court established that plaintiffs in retaliatory pros-

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