IN THE Supreme Court of the United States · impact of such a rule in two cases previously heard...

No. 17-21

IN THE

Supreme Court of the United States

FANE LOZMAN,Petitioner,

—v.—

CITY OF RIVIERA BEACH, FLORIDA,Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICUS CURIAE

INSTITUTE FOR FREE SPEECH

IN SUPPORT OF PETITIONER

d

FLOYD ABRAMS

Counsel of Record

KATHLEEN E. FARLEY

CELIA BELMONTE

CAHILL GORDON & REINDEL LLP80 Pine StreetNew York, New York 10005(212) [email protected]

ALLEN DICKERSON

INSTITUTE FOR FREE SPEECH

124 South West Street, Suite 201

Alexandria, Virginia 22314(703) [email protected]

Counsel for Amicus Curiae Institute for Free Speech

i

73393 • CAHILL: Lozman• USSC TCA • NP • 03:30 • 12-27-2017

INTEREST OF AMICUS CURIAE ............... 1

INTRODUCTION: MT. HEALTHY AND ITS PROGENY........................................ 2

ARGUMENT .................................................. 5

I. SIGNIFICANT DEPRIVATIONS OF FIRST AMENDMENT RIGHTS WILL OCCUR IF THE EXISTENCE OF PROBABLE CAUSE FOR AN ARREST BARS, UNDER ALL CIRCUMSTANCES, ALL RETALIATORY ARREST CLAIMS ............................................ 5

A. Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013) ... 7

B. Gullick v. Ott, 517 F. Supp. 2d 1063 (W.D. Wis. 2007) ........................ 10

C. Marlin v. City of New York, 2016 WL 4939371 (S.D.N.Y. Sept. 7, 2016) ............ 12

D. Cranford v. Kluttz, 2017 WL 4358761 (M.D.N.C. Sept. 30, 2017) ......... 14

TABLE OF CONTENTSPAGE

iiPAGE

II. ABSENT THE SPECIFICCIRCUMSTANCES TRIGGERING THE HARTMAN EXCEPTION, MT. HEALTHY SHOULD BE APPLIED TO PERMIT VINDICATION OF CRITICAL FIRST AMENDMENT INTERESTS...................................... 17

A. Retaliatory Arrest Cases Do NotPresent Special CircumstancesRequiring Absence of Probable Cause as a Proxy Inquiry.......... 17

B. The Mt. Healthy Framework Allows Courts to Determine Whether State Action Was Taken to Punish Protected Speech Because of Its CommunicativeImpact ........................................ 19

C. Focusing Only on the Existence of Probable Cause Does Not AllowCourts to Consider Whether a State Action Was Taken to PunishProtected Speech Because of ItsCommunicative Impact ............. 21

CONCLUSION .............................................. 25


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City of Houston v. Hill,482 U.S. 451 (1987) ................................ 20

Cranford v. Kluttz,2017 WL 4358761 (M.D.N.C. Sept. 30, 2017)..........14, 15, 17, 24

Devenpeck v. Alford,543 U.S. 146 (2004) ................................ 21

Fabrikant v. French,691 F.3d 193 (2d Cir. 2012) ................... 13

Ford v. City of Yakima,706 F.3d 1188 (9th Cir. 2013) ............................7, 8, 9, 17, 19

Gullick v. Ott,517 F. Supp. 2d 1063 (W.D. Wis. 2007) ..................10, 11, 12, 20, 21

Hartman v. Moore,547 U.S. 250 (2006) ........................3, 4, 17, 23

Hill v. Colorado,530 U.S. 703 (2000) ....................................5, 6

Marlin v. City of New York,2016 WL 4939371 (S.D.N.Y. Sept. 7, 2016) .............12, 13, 21, 22

McCullen v. Coakley,134 S. Ct. 2518 (2014) ................................5, 6

Mt. Healthy City School District Board of Education v. Doyle,429 U.S. 274 (1977) ..............................passim

TABLE OF AUTHORITIESPAGECases:


ivPAGE

NAACP v. Claiborne Hardware Co.,458 U.S. 886 (1982) ................................ 22

United States v. O’Brien,391 U.S. 367 (1968) ................................ 22

Periodicals:

Linda Zhang, Retaliatory Arrests and the First Amendment: The Chilling Effects of Hartman v. Moore on Freedom of Speech in the Age of Civilian Vigilance, 64 UCLA L. REV. 1328 (2017). .............. 23

Statutes and Regulations:

N.C. Gen. Stat. § 14-288.4(a)(2) ..................15, 16R.C.N.Y. § l-03(a) .......................................... 13


BRIEF OF INSTITUTE FOR FREE SPEECH AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

INTEREST OF AMICUS CURIAE1

The Institute for Free Speech, previously knownas the Center for Competit ive Pol it ics , is anonpartisan, nonprofit organization that exists toprotect and defend the First Amendment rights ofspeech, press, assembly, and petition. As part ofthat mission, the Institute represents individualsand civil society organizations pro bono in casesraising First Amendment objections to protectedspeech. The Institute has an interest in this casebecause arrests made in retaliation for the exerciseof First Amendment rights are a particularlychi l l ing form of governmental response toconstitutionally protected but officially disfavoredspeech. It would imperi l First Amendmentinterests of the most significant nature if suchgovernmental misconduct, however egregious andwhatever the circumstances, were immunizedfrom judicial scrutiny whenever probable cause ofa violation of law may be said to have existed.

73393 • CAHILL : Lozman • USSC LP 12-27-2017

1 Pursuant to Sup. Ct. Rule 37.6, amicus affirms thatno counsel for a party authored this brief in whole or in partand that no person other than amicus and its counsel madea monetary contribution to its preparation or submission.Petitioner’s blanket consent to the filing of amicus briefs,filed with the Court on December 19, 2017, and Respondent’swritten consent to the filing of this brief have been filedconcurrently with this brief.

To avoid that result and to vindicate FirstAmendment principles of the highest order, theInstitute for Free Speech submits this brief insupport of petitioner Fane Lozman.

INTRODUCTION: MT. HEALTHYAND ITS PROGENY

The Court has long since art iculated theframework within which the central issue of thiscase should be addressed. In Mt. Healthy CitySchool District Board of Education v. Doyle, 429U.S. 274 (1977), the Court determined that tostate a claim for First Amendment retaliation, aplaintiff must show that: (1) her speech wasconstitutionally protected; (2) she suffered adverseconduct that would l ikely deter a person ofordinary firmness from engaging in such speech;and (3) in part , plainti f f ’ s constitutionallyprotected activity motivated defendant’s adverseaction. See id. at 285-287. That decision furtherprovides that once the plaintiff shows that herprotected conduct was a motivating factortriggering the defendant’s adverse conduct, theburden shifts to the defendant to show that itwould have taken the same action in the absenceof the protected conduct , in which case thedefendant cannot be held liable. Id. at 287.

Application of Mt. Healthy neither requires norpermits lower courts to ignore the issue ofprobable cause. Rather, a court deciding a casegoverned by Mt. Healthy considers whetherprobable cause existed as a factor in its holisticassessment of the circumstances triggering thearrest. The more plausible the submission that the

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cause of an arrest was official disapproval ofprotected speech, the more likely it is that a FirstAmendment retaliation claim will succeed. Theless plausible , the less l ikely a juridicaldetermination will follow that a First Amendmentclaim will carry the day.

Mt. Healthy focuses on the issue of motivation.What it does not do—what it rejects—is the notionthat so long as there was probable cause for anarrest, it necessarily follows in all circumstancesthat a retaliation claim must fail. That result isall the more important in a nation awash incriminal statutes, one in which, as the briefsubmitted by the Institute for Justice in this casepoints out, an average Florida driver could easilybe arrested for at least one moving violation everytime she drives. Br. of Amicus Curiae Institute forJustice In Supp. of Pet. for Cert., 10-11.

In Hartman v. Moore, 547 U.S. 250 (2006), theCourt deviated from the Mt. Healthy standard,adding a no-probable-cause element to retaliatoryprosecution claims. In so holding, the Courtemphasized that its rationale for deviating fromthe Mt. Healthy analysis was the “distinct problemof causation” naturally present in all retaliatoryprosecution claims. Id. at 263. The causationproblem identified by this Court is that a plaintiffbringing a retal iatory prosecution c laimnecessarily “must show that the nonprosecutingofficial acted in retaliation, and must also showthat he induced the prosecutor to bring chargesthat would not have been initiated without hisurging.” Id. at 262. By its nature, such a showingis exceedingly difficult because “the longstandingpresumption of regularity accorded to

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prosecutorial decisionmaking,” id. at 263, makesthe prosecutor’s mind a black box—the court maynot inquire into the subjective motivation of theprosecutor who brought the charges. As a result,the court must proceed on the basis that so long asprobable cause for the prosecution existed, theunderlying motivation of the state in commencingthe prosecution may not be challenged withoutintruding into long-protected decisionmakingareas. There is no such “legal obstacle,” as thecourt in Hartman put it, to inquiries into whetherpolice or authorities who decide whether to arrestpeople for any of the multitudes of potentialoffenses that are embodied in legislation did sowith the motivation of suppressing or punishingconstitutionally protected speech. See id.

Mt. Healthy remains firmly established and isroutinely applied in cases involving claims of FirstAmendment retal iat ion. Application of Mt.Healthy does not guarantee the success of aplaintiff alleging unconstitutional retaliation;application of Hartman assures its failure in anysituation in which probable cause is held to exist.The core legal issue in this case is whether the Mt.Healthy standard should be applied in retaliatoryarrest cases or whether the Hartman exceptionshould carry the day. We urge the former resultfor reasons set forth in this submission.

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ARGUMENT

I. SIGNIFICANT DEPRIVATIONS OF FIRSTAMENDMENT RIGHTS WILL OCCUR IFTHE EXISTENCE OF PROBABLE CAUSEFOR AN ARREST BARS, UNDER ALLCIRCUMSTANCES, ALL RETALIATORYARREST CLAIMS

The answer to the question posed above is, wesubmit , most easi ly reached by reviewing anumber of cases already decided by this Court andby various lower courts. The facts set forth inthose cases illustrate the magnitude of the speech-destructive impact of a rule that a FirstAmendment retal iat ion c laim may not bejuridically entertained when probable cause existsof the violation of law by the party asserting theclaim. We set forth the facts of four recent cases—one in a court of appeals and three in federaldistrict courts—in the pages that follow. Beforedoing so, however, we consider the potentialimpact of such a rule in two cases previouslyheard and determined by this Court.

In both Hill v. Colorado, 530 U.S. 703 (2000)and McCullen v. Coakley, 134 S. Ct. 2518 (2014)this Court considered the constitutionality of statestatutes that established buffer zones in whichspeech was significantly limited near abortionclinics. Both cases involved facial challengesunder the First Amendment but both could, justas well , have arisen in the context of FirstAmendment retaliation claims. In the first case,individuals who sought to engage in “‘sidewalkcounseling’” for the asserted purpose of educating,counseling, persuading, or informing passersby

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“ ‘about abortion and abortion alternatives ’”challenged the constitutionality of the statute.Hill , 530 U.S. at 708. In the second case,individuals who sought “to engage womenapproaching the c l inics in . . . ‘ s idewalkcounseling,’ which involves offering informationabout alternatives to abortion” offered similarchallenges to the statute. McCullen, 134 S. Ct. at2527. This Court affirmed the constitutionality ofthe former statute and a dozen years later heldthe latter statute unconstitutional.

We do not seek in this brief to relitigate theconstitutionality of either statute but simply toput before the Court the question of how it wouldhave dealt with either case if the constitutionalityof both statutes had been affirmed and if pro-lifespeakers had been able to demonstrate that whilethey had spoken within the designated zones in amatter inconsistent with the governing standard—thus providing a basis for a determination ofprobable cause of a violation—the statutes were,in practice, only being enforced as to them becauseof their views—thus providing a basis fordeterminations of retaliation against them for theexercise of their First Amendment rights. In fact,the dissenting opinions of Justices Scalia andKennedy in Hill (530 U.S. at 741, 765) and theconcurring opinions of Justices Scalia and Alito inMcCullen (134 S. Ct. at 2541, 2548) urged that thestatutes at issue were viewpoint-based and thusat odds with the First Amendment. Majorities onthe Court in the two cases concluded that thestatutes need not be so read. But had the anti-abortion activists whose speech was limited by thestatutes at issue been victimized by retaliatoryarrests based on the content of their speech,

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adherence to the approach of the Eleventh Circuitin the Lozman case would have required dismissalof any First Amendment retaliation claims theymight have asserted, s imply because of thepresence of probable cause of violations of thoselaws.

We do not believe such result is consistent withthe First Amendment. But that is precisely whatwould be required if the Eleventh Circuit ruling inthis case were affirmed. A review of lower courtcases leads to the identical conclusion. We turn tothose cases.

A. Ford v. City of Yakima, 706 F.3d 1188(9th Cir. 2013)

In Ford v. City of Yakima, 706 F.3d 1188, 1190(9th Cir. 2013), plaintiff Eddie Ford was listeningto music while driving when he noticed a policecar, driven by defendant Officer Ryan Urlacher,following him.2 Ford stepped out of his car at a redlight and asked Officer Urlacher why he wasfollowing him so closely. Id. Officer Urlacher toldFord to get back into his car and “go.” Id.Moments later, Officer Urlacher pulled Ford over.Id. After parking, Ford emerged from his caryelling and told Office Urlacher that he believedthe stop was racial ly motivated. Id. OfficerUrlacher warned Ford to stay in the car or hewould go to jail. Id. Ford heeded Officer Urlacher’swarning. Id.

Officer Urlacher proceeded to tell anotherofficer, “‘I think I’m going to arrest [Ford] for [a]

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2 The facts in the Ford case and others discussed inthis brief are set forth in the opinions and court filings cited.

city noise ordinance violation right now. He mightonly get a ticket if he cooperates. But with thatattitude, he’s going to get cuffed.’” Id. OfficerUrlacher next handcuffed Ford and made thefollowing statements to him: “‘Stop running themouth and listen’”; “‘If you talk over me, you aregoing to go to jail, sir. Do not talk over me’”; “‘Ifyou cooperate, I may let you go with a tickettoday. If you run your mouth, I will book you injail for it. Yes, I will, and I will tow your car’”; “‘Ifyou cooperate and shut your mouth, I’ll give you aticket and you can go.’” Id. at 1190-1191. Fordstopped yelling and proceeded to answer OfficerUrlacher’s questions with, “‘Uh-huh’” and “‘You dowhat you want.’” Id. at 1191.

After Ford expressed concern about getting towork, Officer Urlacher told him:

“‘Well that’s not going to happen if youdon’t—if you keep running your mouth.Okay? If you have diarrhea of the mouth,you will go to jail. If you cooperate with usand treat us like human beings, we willtreat you like a human being. Do youunderstand me?’” Id.

Officer Urlacher proceeded to tell a backupofficer, “‘I don’t know if I’m going to book him yet.I’ll see if he’s going to shut up’” before tellingfellow defendant Lieutenant Nolan Wentz, “‘Sohe’s under arrest for the city ordinance right now.If he shuts up, I’ll let him go with a ticket.’” Id.Wentz then advised taking Ford to jail; Ulracheragreed.

While being driven by Officer Urlacher to thebooking facility, Ford invoked his right to free

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speech. In response, Officer Urlacher replied, inpart:

“ ‘You’re going to jai l for numerousreasons. The crime you’re going to jail foris the city noise ordinance. A lot of timeswe tend to cite and release people for thator we give warnings. However . . . youacted a fool . . . and we have discretionwhether we can book or release you. Youtalked yourself—your mouth and yourattitude talked you into jail. Yes, it did.’”Id. (emphasis in original).

Ultimately, the Ninth Circuit concluded that,because “a person of ordinary firmness would bechil led from future exercise of his FirstAmendment rights if he were booked and taken tojail in retaliation for his speech” that “a rationaljury could find that the officers deterred or chilledthe future exercise of Ford’s First Amendmentrights.” Id. at 1194. The court then determinedthat “the facts establish[ed] that the officers’alleged conduct violated [Ford’s] right to be freefrom pol ice act ion motivated by retal iatoryanimus, even if probable cause existed for thataction.” Id. at 1195. After f inding that thedefendant officers were not entitled to qualifiedimmunity, the court reversed the district court’sgranting of summary judgment and allowed Ford’sclaim to proceed to trial because he “put forthfacts sufficient to allege a violation of his clearlyestablished First Amendment right to be free frompolice action motivated by retaliatory animus,even if probable cause existed for that action.” Id.at 1196.

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B. Gullick v. Ott, 517 F. Supp. 2d 1063(W.D. Wis. 2007)

In Gullick v. Ott, 517 F. Supp. 2d 1063 (W.D.Wis. 2007) , plainti f f Thomas Gull ick sueddefendant deputy sheri f f Terry Ott in hisindividual capacity for issuing him a citation inretaliation for supporting a particular politicalcandidate. Gullick was well-known as a supporterof town-sheriff candidate Richard Bradner, andwas “disl iked by supporters of” Bradner ’sopponent, Dennis Richards. Id at 1065. Ott, on theother hand, was an avid supporter of Richards. Id.In fact, Ott’s support was so strong that evenbefore the incident giving r ise to this case,another officer warned Gullick to “look out for”Ott. Id. at 1066. In this warning, the other officersaid that Ott would treat Gullick unfairly werethe two to ever have a dispute, because of theiropposing political views. Id.

The interaction giving rise to the suit startedwhen Ott saw Gullick standing on the side of theroad near a sign that read: “Richards for Sheriff.”Id. Ott pulled of f to the s ide of the road,approached Gullick, and asked him why he wasnear the sign. Id. Gullick maintained he said thathe was examining the sign to see whether it hadbeen placed illegally on a public right of way;according to Ott, Gullick responded that he wentnear the sign to urinate. Id.

Shortly thereafter, Ott told Gullick to wait inhis car while he took a look around. Id. Ottsurveyed the area, and then contacted the sheriff’sdispatch center to discuss the situation. Id. Ottidentified Gullick to the dispatcher, and thendescribed what he had seen. Id. In that

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description Ott noted that the “Richards forSheriff” sign was “bent over onto the ground.”(Ott’s supervisor, however, visited the scene laterthat night and found no such damage to the sign).Id.

With Gullick still waiting in his car, Ott startedtext-message conversations with two otherofficers. In one of the conversations, the otheroff icer wrote that Gull ick was “ ‘a pol it icalfanatic,’” and that Ott should call him. Id. at 1067.Ott responded that he could not make the call, butthat he was in search of the statute on publicurination. Id. In the other conversation, the otherofficer asked whether Ott thought Gullick was theperson responsible for the anti-Richards fliersthat were placed around town.3 Id.

After his conversation, Ott returned to Gullick,issued him a citation for public urination, andasked whether he could search his car for anti-Richards fliers.4 Id. Gullick consented, and Ottsearched Gullick’s car to no avail. Id. All in all,the stop lasted a little over one hour. Id.

The court analyzed the absence of probablecause as one factor in its larger inquiry intowhether the arrest was motivated by retaliatoryanimus, in accordance with the Mt. Healthy

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3 While the stop was ongoing, Richards called hiscampaign manager to tell him that Gullick had been caught“‘peeing on a sign or bending a sign.’” The managerresponded that “‘they finally caught’” Gullick. Id.

4 In his police report, Ott wrote that he had searchedGullick’s car for anti-Richards fliers in pursuit of “‘evidenceto support [his] case of criminal damage to a political sign.’”Id.

framework. The court found that parties ’diametrically opposing viewpoints, the ominouswarning to Gullick, the infrequency with whichpublic-urination statutes are enforced (especiallyin rural areas), the dispute of fact as to theabsence of probable cause, and the groundlesssearch of Gullick’s car all suggested that thefactor driving Ott’s decision to give Gullick acitation was actually Gullick’s support of Bradner.Id. Summary judgment was thus denied to deputysheriff Ott.

C. Marlin v. City of New York, 2016 WL4939371 (S.D.N.Y. Sept. 7, 2016)

In Marlin v. City of New York , 2016 WL4939371, at *2 (S.D.N.Y. Sept. 7, 2016), plaintiffJason Marlin participated in the Occupy WallStreet demonstrations in New York City’s UnionSquare. According to Marlin, he was aware thatthe park c losed at midnight because fel lowprotestors had “mentioned it” to him. Id. at *2.However, he claimed that he did not believe thatthe part of Union Square in which he stood thatnight closed at midnight because it was not part ofthe park; plaintiff asserted that he was standingoutside the park entrance in a public right-of-way.Id. at *2, *11.

Marlin alleged that he was arrested becausepolice officers believed he was assisting anotherprotestor who criticized the police. A femaleprotestor standing next to Marlin was arrestedafter yel l ing, “ ‘You should be ashamed ofyourselves’” at the officers. Id. at *3. Seconds afterthe female protestor’s arrest, one of the defendantofficers alleged that Marlin was “helping” her andordered his arrest. Id. Police affidavits maintained

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that Marlin interfered with an ongoing arrest, andthat he resisted arrest by refusing to place hisarms behind his back and falling to the ground.Id. at *4.

Marlin had been charged with resisting arrestand obstruction of governmental administration.Id . The district court ’s analysis of his FirstAmendment retaliation claim focused entirely onthe presence of probable cause for his commissionof a different offense—violation of New York Citypark rules—because in the Second Circuit, “[t]heexistence of probable cause will defeat a FirstAmendment claim, ‘premised on the allegationthat defendants prosecuted a plaintiff out of aretaliatory move.’” Id. at *14 (quoting Fabrikant v.French, 691 F.3d 193, 215 (2d Cir. 2012)). In itsprior analysis of plaintiff’s claim for false arrest,the court had already found that the defendantofficers had probable cause to arrest Marlin forviolating R.C.N.Y. § l-03(a), which prohibits beingin a city park after it is closed to the public. Id. at*9-*10. Reasoning that plaintiff was at least near“an entrance to the park” and that thus “arguableprobable cause” existed for this violation, thecourt held that it saw no need to decide whetherthere was probable cause to arrest Marlin for aviolation of any of the other park rules at issue orfor the charges actually cited at the time of hisarrest. Id. at *10-*11. So long as probable causeexisted for any violation, the court concluded, thequestion was settled and no retaliation claimcould survive. Id. at *10- *11, *14.

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D. Cranford v. Kluttz, 2017 WL 4358761(M.D.N.C. Sept. 30, 2017)

In Cranford v. Kluttz, 2017 WL 4358761, at *1(M.D.N.C. Sept. 30, 2017), plaintiff Brian D.Cranford, a Christian “street preacher” whotraveled his local area professing hisinterpretation of the Christian Bible on publicstreets, began preaching at the “Farmers’ DayFestival,” a street fair featuring a farmer’s marketand other local vendors. Defendant local policeChief Eddie Kluttz reassigned defendant DetectiveReese Helms from general patrol duty andinstructed him to observe Cranford, tel l ingDetective Helms that “if [plaintiff] violates anylaw, he should be arrested.” Excerpts of Dep. ofReese Helms at 17, 20, Cranford v. Kluttz, No. 15-cv-00987 (M.D.N.C., Dec. 1, 2016), ECF No. 31-3.When Detective Helms told Cranford he could notpreach on Festival grounds or pass out literatureinside fest ival grounds because he had notregistered for a vendor booth, Cranford elected tostand near the boundary of the festival grounds,and preach to passersby, focusing on the topic thatwomen who did not dress modestly were “whoresand prostitutes.” 2017 WL 4358761, at *17-*19.

After Cranford ’s preaching precipitated a“contentious” conversation with a speci f icfest ivalgoer, Detect ive Helms approachedCranford and told him, “‘[y]ou’re not gonna bedisrespectful’” and “‘don’t start causing issue withthe people. You can preach, but that has nothingto do with talking about people. ’ ” Id . at *2.Detective Helms’ instructions were evidentlybased on the North Carol ina state statuteprohibiting “[d]isorderly conduct,” which includedcausing a public disturbance by “[m]ak[ing] or

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us[ing] any utterance, gesture, display or abusivelanguage which is intended and plainly likely toprovoke violent retaliation.” N.C. Gen. Stat. §14–288.4(a)(2); 2017 WL 4358761, at *20.

Cranford continued to preach on the topic thatwomen should dress modestly, at times addressinghis comments to specific festivalgoers and at onepoint gesturing to Detective Helms’ wife andfamily, stating

“‘All you ladies need to learn how to puton some clothes, too. I’m talkin’ to her. I’mtalkin’ to your family members. And all ofthose ladies over there. The Bible saysthat a woman should dress modestly. Seea lot of ladies out here dressed l iketramps and whores and prostitutes today.The Bible says you dress modestly. Todayall you ladies who’s dressed half-nekkidout here.’” Id. at *3, *19.

Immediately before Cranford’s arrest, he andDetective Helms had the following exchange:

“Defendant Helms interrupted him, ‘Sir,you cannot cal l people whores andprostitutes. ’ [Cranford] immediatelyresponded, ‘The Bible says it calls ‘emwhores and prostitutes.’ Defendant Helmssaid, “If you say that one more time, I’maplace you under arrest’ and [Cranford]again immediately responded, ‘You can’tbe whores and prostitutes, you can’t be.’”Id. at *3 (internal citations omitted).

Cranford filed multiple claims relating to hisarrest, including a claim for First Amendmentretaliation. In considering other claims, the court

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found sufficient probable cause to confer qualifiedimmunity on the defendants for a possible FourthAmendment violation. Id. at *17-*19. The courtacknowledged that the statements thatprecipitated Cranford’s arrest could have beengeneral professions of his interpretation ofBiblical principles, but it also found that it wasreasonable to conclude that Cranford may haveintended his statements to provoke speci f icindividuals. Id. at *17. The court found probablecause to arrest on the basis that Cranford wasultimately convicted of disorderly conduct by astate court. Id.

The court concluded that notwithstanding thatit was “possible, at least theoretically, thatDefendant Helms also acted in retaliation for[Cranford’s] exercise of his First Amendmentrights,” id. at *21, Cranford could not state aclaim against Detective Helms for retaliatoryarrest due to the existence of probable cause.

* * * * *The above cases, one from a court of appeals and

three others from district courts, illustrate notonly the wide range of circumstances in whichclaims of retaliatory arrests occur, but the vice ofa per se rule barring al l First Amendmentretaliation claims so long as probable cause for anarrest existed. Marlin may have had a moreattractive claim than Ford, Cranford than Gullick,but the enforcement of a rigid legal bar to theassertion of a retaliatory arrest claim in all fourcases is indefensible.

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II. ABSENT THE SPECIFIC CIRCUMSTANCESTRIGGERING THE HARTMAN EXCEPTION,MT. HEALTHY SHOULD BE APPLIED TOPERMIT VINDICATION OF CRITICALFIRST AMENDMENT INTERESTS

The above cases also reveal that the frameworkarticulated by this Court in Mt. Healthy, whichconsiders probable cause, but does not allow itsexistence, in and of itself, to defeat a retaliatoryarrest claim, should be followed. The Mt. Healthyframework, unlike that set forth in Hartman,allows the Court to make crucial inquiries intowhether the communicative impact of protectedspeech impermissibly motivated an arrest. Courtscannot protect First Amendment rights using amode of inquiry that does not permit them even toexamine whether protected speech was targetedbased on its communicative impact.

A. Retaliatory Arrest Cases Do NotPresent Special CircumstancesRequiring Absence of Probable Causeas a Proxy Inquiry

Most retaliatory arrest cases do not need the“gap-f i l l ing” analysis required in Hartmanbecause, as illustrated by the cases above, thearresting officer and the government official withpurported animus are one and the same. See, e.g.,Ford v. City of Yakima, supra; Cranford v. Kluttz,supra. Like the “ordinary retaliation claims” thatthe Court differentiated retaliatory prosecutionclaims from in Hartman, in these types of claims“the government agent allegedly harboring theanimus is also the individual allegedly taking theadverse action.” Hartman, 547 U.S. at 259. As the

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government official harboring the animus is theexecutor of the arrest, there is no need to inquireinto absence of probable cause to determine hismotivation via a proxy analysis—his motivationcan be examined directly.

The instant case, where another of f ic ialinstructed the arresting officer to effect Mr.Lozman’s detention, may seem to present adifferent situation that involves the need to fill agap because multiple actors are involved.However, in this and similar situations involvingmultiple government officials participating in andinfluencing the decision to arrest, unlike in aretaliatory prosecution claim, the court may stillconsider the actual motivation of the arrestingofficer. The “absence of probable cause” inquiry isnot needed as a proxy where the court can inquireinto the motivation of the arresting officer. Thecourt can direct ly examine whether thegovernmental official making the arrest wassubstantial ly inf luenced by his or anothergovernment official’s desire to retaliate againstprotected speech with which they disagreed. Inretaliatory arrest cases, requiring plaintiff tonegate the existence of probable cause fills noimportant function, and only serves to cut off thecourt from inquiring into whether the arrest wasmotivated by the communicative impact ofprotected speech.

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B. The Mt. Healthy Framework AllowsCourts to Determine Whether StateAction Was Taken to Punish ProtectedSpeech Because of Its CommunicativeImpact

The burden-shift ing framework considersabsence of probable cause as an element of thethird Mt. Healthy factor: whether plaintiff ’sconstitutionally protected activity motivateddefendant’s adverse action. This allows courts toconsider absence of probable cause as an elementof the inquiry, together with the off icer ’smotivation, in order to determine the truemotivation of the arrest. Where the court is notbound to search for any possible probable cause,and terminate its inquiry if probable cause isfound, it is able better to assess whether the arrestwas retaliatory. Permitting the court to considerabsence of probable cause as just one element ofthe inquiry into the officer’s motivation allows thecourt to more accurately assess whether the speechthat triggered the arrest was protected orunprotected speech, and whether the arrest wasbased on the speech’s message. Ford is illustrativeof the benefits of formulating the inquiry in thisfashion. There, the arresting officer explicitly toldFord that the real reason for his arrest was hisargumentative attitude—not his violation of thenoise ordinance. Ford was plausibly arrested notfor his unprotected speech that triggered thearrest, but rather based on his later, protectedspeech, due to its message. Because the court didnot have to stop its analysis once it found probablecause, it was able to determine that a jury couldfind that Ford was arrested for an impermissibleretaliatory motive against his protected speech.

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Gullick too shows that the Mt. Healthyframework allows the court to determine whetherthe arrest was actually triggered by retaliatoryanimus towards plaintiff ’s protected speech.Because the court understood that i t waspermitted to consider the existence of probablecause to arrest as part of its larger inquiry intothe officer’s motivation for arresting, it was ableto determine that an of f icer who haddemonstrated animus towards Gullick for hispolit ical speech and who had to look up thestatute that was the basis for his charge could infact have had a retaliatory motive

Gullick also demonstrates how examining theexistence of probable cause as part of the largerinquiry into the arresting officer’s motivation canreveal that the officer exercised discretion on acharge wholly unrelated to speech because of thearrestee’s protected speech in a separate incident.Gullick pleaded facts supporting the propositionthat the arresting officer was upset with hisprotected political speech prior to the incident forwhich he was arrested. In fact , other lawenforcement officers had warned Gullick to lookout for the officer who arrested him because oftheir political dispute. He was then arrested forpublic urination, a charge wholly unrelated tospeech, which the court noted was very rarelyenforced. By considering probable cause as part ofthe inquiry into the motivation to arrest, the courtwas able to take into account whether thediscretionary decision to arrest was based on hisprotected speech. This Court has repeatedly foundunconstitutional laws that provide the police with“unfettered discretion to arrest individuals forwords or conduct that annoy or offend them,” City

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of Houston v. Hill, 482 U.S. 451, 465 (1987). TheGullick rul ing was consistent with thatdetermination.

C. Focusing Only on the Existence ofProbable Cause Does Not AllowCourts to Consider Whether a StateAction Was Taken to Punish ProtectedSpeech Because of Its CommunicativeImpact

The First Amendment is not easily vindicated incircuits where the courts consider absence ofprobable cause not as a factor in its holisticassessment of the circumstances motivating anarrest, but as a single determinative element onwhich plaintiff’s retaliation claim turns. In thesecircuits, the court may not even inquire intowhether the arresting officer was at all influencedby the speaker’s message, so long as probablecause exists for any reason—even a reason otherthan the charges cited at the time of arrest. See,e.g., Marlin, 2016 WL 4939371. In determiningwhether probable cause exists for an arrest, courtsevaluate whether the facts known by the arrestingoff icer at the t ime of the arrest object ivelyprovided probable cause to arrest. Devenpeck v.Alford , 543 U.S. 146, 153 (2004) . Whetherprobable cause existed for the charge actuallyinvoked by the arresting officer at the time of thearrest is irrelevant. Id. at 153-54. Once the courtfinds probable cause, the inquiry ceases, and theFirst Amendment retaliation claim is defeated,without the court even looking at whether theplaintiff had engaged in speech possibly deservingof constitutional protection, or if the officer tookaction based on the message plaintiff conveyed.

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See Marlin, 2016 WL 4939371, at *14. Such acursory inquiry runs contrary to this Court’s FirstAmendment jurisprudence.

The First Amendment demands that courtsmust at least inquire into whether state action (1)targets protected speech, and (2) whether thatspeech was targeted because of its communicativeimpact. See NAACP v. Claiborne Hardware Co.,458 U.S. 886, 915-16 (1982) (“The fact that [a non-violent , pol it ical ly motivated boycott] isconstitutionally protected, however, imposes aspecial obl igation on this Court to examinecrit ical ly the basis on which l iabi l i ty wasimposed.”). Even where this Court has upheldrestrictions on conduct that have secondary effectson speech, it has first, as a threshold matter,analyzed whether or not the application of the lawtargeted the communicative impact of the conduct.See United States v. O’Brien, 391 U.S. 367, 381–82(1968) (“In other words, both the governmentalinterest and the operation of the 1965 Amendmentare limited to the noncommunicative aspect ofO’Brien’s conduct . . . . For this noncommunicativeimpact of his conduct, and for nothing else, he wasconvicted.”).

As the above cases illustrate, for courts toanalyze a cause of action for violation of FirstAmendment rights without even engaging in anyof the most fundamental and basic inquiries thisCourt has developed to define the contours of thatright is to slam the door on the First Amendmentaltogether.

In Marlin , the court did not even considerwhether a protestor exercis ing his FirstAmendment rights in public, arguably on the

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public sidewalk, was engaging in protected speech.It did not have to—indeed, was not permitted to—resolve the dispute between the protestors’ versionof events and the police officers’ version, norwhether there was probable cause for theviolations cited at the time of plaintiff’s arrest.The court stopped considering the FirstAmendment retaliation claim once it concludedthat there was only arguable probable cause thatplaintiff broke a different law than the police citedat the time of his arrest. Protection of FirstAmendment rights requires greater judicialattention—especially as the increased prevalenceof citizen recordings of the police provides courtswith evidence of what truly occurred. Cf. LindaZhang, Retaliatory Arrests and the FirstAmendment: The Chilling Effects of Hartman v.Moore on Freedom of Speech in the Age of CivilianVigilance, 64 UCLA L. REV. 1328, 1363 (2017).

Cases such as Marlin demonstrate that in thecircuits that bar retal iat ion c laims unlessprobable cause is negated, the pro-life activists inthe hypothetical we posited at the very beginningof this discussion would have no recourse topursue such claims. If a clash of pro-choice andpro-life activists sparked a riot, the police wouldbe free to arrest only the pro-life activists becauseof the presence of probable cause. Even if anofficer acknowledged to all the pro-life activiststhat he rounded up, “I’m arresting only pro-lifepeople because I think you’re wrong,” or “I’marresting all you pro-life people because it ’salways you that start the trouble,” the arrestcould not be considered retaliatory so long asprobable cause for the violation of law existed.

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Cranford highlights a more nuanced problempresented by requiring the negation of probablecause as a prerequisite to asserting a retaliationclaim. Since the court must tightly focus onwhether probable cause existed at the pointplainti f f was arrested, i t may not considerwhether the arresting officer’s retaliatory animusshaped the entire scenario leading up to thearrest . In Cranford , the court confronted asituation where another court had alreadydetermined that Cranford’s professions of hisreligious beliefs did ultimately cross the line intounprotected “fighting words.” However, Cranford’sunprotected statements were uttered afterCranford had already been targeted by and hadverbal exchanges with law enforcement. ChiefKluttz had told Detect ive Helms to targetCranford for arrest. Detective Helms removedCranford from the festival grounds, and hadissued his own judgment on the content andviewpoint of Cranford’s speech, telling him it was“disrespectful.” Presumably, the speech that was“disrespectful” was protected speech that did notviolate the disorderly conduct statute, asDetective Helms did not yet arrest Cranford atthat point. Despite the potentially significant factssuggesting retaliatory motive, the court was notpermitted to even consider whether DetectiveHelms and Chief Kluttz targeted Cranford basedon their knowledge of his prior preaching andprovoked him into ult imately violating thedisorderly conduct statute, for, in the FourthCircuit, once probable cause to arrest for anyreason is found, the court may inquire no further.That is precisely why a rule imposing the far moreholistic Mt. Healthy approach is needed.

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CONCLUSION

For the reasons stated above, the Institute forFree Speech respectfully submits that this Courtshould reject any mode of analysis for FirstAmendment retaliatory arrest claims that ignoreswhether protected speech actually was or was nottargeted based on its message. If the presence ofprobable cause alone defeats the existence of aFirst Amendment retaliatory arrest claim underall circumstances, arrests rooted in an effort tostifle protected speech will become judiciallyunscrutinized and undisturbed throughout thenation. Such a result risks impairing publicconfidence in both law enforcement and thejudiciary at the same time it is irreconcilable withthis Court’s duty to protect First Amendmentrights.December 29, 2017

Respectfully submitted,

ALLEN DICKERSON FLOYD ABRAMSINSTITUTE FOR Counsel of Record

FREE SPEECH KATHLEEN E. FARLEY124 South West Street CELIA BELMONTE

Suite 201 CAHILL GORDONAlexandria, VA 22314 & REINDEL LLP(703) 894-6800 80 Pine [email protected] New York, NY 10005

(212) [email protected]

Counsel for Amicus Curiae

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IN THE Supreme Court of the United States · impact of such a rule in two cases previously heard...

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