Nieves v. Bartlett , 204 L. Ed. 2d 1 ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NIEVES ET AL. v. BARTLETT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 17–1174. Argued November 26, 2018—Decided May 28, 2019
Respondent Russell Bartlett was arrested by police officers Luis Nieves
and Bryce Weight for disorderly conduct and resisting arrest during
“Arctic Man,” a raucous winter sports festival held in a remote part of
Alaska. According to Sergeant Nieves, he was speaking with a group
of attendees when a seemingly intoxicated Bartlett started shouting
at them not to talk to the police. When Nieves approached him, Bart-
lett began yelling at the officer to leave. Rather than escalate the
situation, Nieves left. Bartlett disputes that account, claiming that
he was not drunk at that time and did not yell at Nieves. Minutes
later, Trooper Weight says, Bartlett approached him in an aggressive
manner while he was questioning a minor, stood between Weight and
the teenager, and yelled with slurred speech that Weight should not
speak with the minor. When Bartlett stepped toward Weight, the of-
ficer pushed him back. Nieves saw the confrontation and initiated an
arrest. When Bartlett was slow to comply, the officers forced him to
the ground. Bartlett denies being aggressive and claims that he was
slow to comply because of a back injury. After he was handcuffed,
Bartlett claims that Nieves said “bet you wish you would have talked
to me now.”
Bartlett sued under 42 U. S. C. §1983, claiming that the officers
violated his First Amendment rights by arresting him in retaliation
for his speech—i.e., his initial refusal to speak with Nieves and his
intervention in Weight’s discussion with the minor. The District
Court granted summary judgment for the officers, holding that the
existence of probable cause to arrest Bartlett precluded his claim.
The Ninth Circuit reversed. It held that probable cause does not de-
feat a retaliatory arrest claim and concluded that Bartlett’s affidavit
about what Nieves allegedly said after the arrest could enable Bart-
2 NIEVES v. BARTLETT
Syllabus
lett to prove that the officers’ desire to chill his speech was a but-for
cause of the arrest.
Held: Because there was probable cause to arrest Bartlett, his retalia-
tory arrest claim fails as a matter of law. Pp. 4–16.
(a) To prevail on a claim such as Bartlett’s, the plaintiff must show
not only that the official acted with a retaliatory motive and that the
plaintiff was injured, but also that the motive was a “but-for” cause of
the injury. Hartman v. Moore, 547 U. S. 250, 259–260. Establishing
that causal connection may be straightforward in some cases, see,
e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, but other
times it is not so simple. In retaliatory prosecution cases, for exam-
ple, the causal inquiry is particularly complex because the official al-
leged to have the retaliatory motive does not carry out the retaliatory
action himself. Instead, the decision to bring charges is made by a
prosecutor—who is generally immune from suit and whose decisions
receive a presumption of regularity. To account for that “problem of
causation,” plaintiffs in retaliatory prosecution cases must prove as a
threshold matter that the decision to press charges was objectively
unreasonable because it was not supported by probable cause.
Hartman, 547 U. S., at 263. Pp. 5–7.
(b) Because First Amendment retaliatory arrest claims involve
causal complexities akin to those identified in Hartman—see, e.g.,
Reichle v. Howards, 566 U. S. 658; Lozman v. Riviera Beach, 585
U. S. ___—the same no-probable-cause requirement generally should
apply. The causal inquiry is complex because protected speech is
often a “wholly legitimate consideration” for officers when deciding
whether to make an arrest. Reichle, 566 U. S., at 668. In addition,
“evidence of the presence or absence of probable cause for the arrest
will be available in virtually every retaliatory arrest case.” Ibid. Its
absence will generally provide weighty evidence that the officers’ an-
imus caused the arrest, whereas its presence will suggest the oppo-
site. While retaliatory arrest cases do not implicate the presumption
of prosecutorial regularity or necessarily involve multiple govern-
ment actors, the ultimate problem remains the same: For both
claims, it is particularly difficult to determine whether the adverse
government action was caused by the officers’ malice or by the plain-
tiff’s potentially criminal conduct.
Bartlett’s proposed approach disregards the causal complexity in-
volved in these cases and dismisses the need for any threshold objec-
tive showing, moving directly to consideration of the officers’ subjec-
tive intent. In the Fourth Amendment context, however, this Court
has “almost uniformly rejected invitations to probe [officers’] subjec-
tive intent,” Ashcroft v. al-Kidd, 563 U. S. 731, 737. A purely subjec-
tive approach would undermine that precedent, would “dampen the
Cite as: 587 U. S. ____ (2019) 3
Syllabus
ardor of all but the most resolute, or the most irresponsible, in the
unflinching discharge of their duties,” Gregoire v. Biddle, 177 F. 2d
579, 581, would compromise evenhanded application of the law by
making the constitutionality of an arrest “vary from place to place
and from time to time” depending on the personal motives of individ-
ual officers, Devenpeck v. Alford, 543 U. S. 146, 154, and would en-
courage officers to minimize communication during arrests to avoid
having their words scrutinized for hints of improper motive. Pp. 8–
11.
(c) When defining the contours of a §1983 claim, this Court looks to
“common-law principles that were well settled at the time of its en-
actment.” Kalina v. Fletcher, 522 U. S. 118, 123. In 1871, when
§1983 was enacted, there was no common law tort for retaliatory ar-
rest based on protected speech. Turning to the “closest analog[s],”
Heck v. Humphrey, 512 U. S. 477, 484, both false imprisonment and
malicious prosecution suggest the same result: The presence of prob-
able cause should generally defeat a First Amendment retaliatory ar-
rest claim. Pp. 12–13.
(d) Because States today permit warrantless misdemeanor arrests
for minor criminal offenses in a wide range of situations—whereas
such arrests were privileged only in limited circumstances when
§1983 was adopted—a narrow qualification is warranted for circum-
stances where officers have probable cause to make arrests, but typi-
cally exercise their discretion not to do so. An unyielding require-
ment to show the absence of probable cause in such cases could pose
“a risk that some police officers may exploit the arrest power as a
means of suppressing speech.” Lozman, 585 U. S., at ___. Thus, the
no-probable-cause requirement should not apply when a plaintiff pre-
sents objective evidence that he was arrested when otherwise simi-
larly situated individuals not engaged in the same sort of protected
speech had not been. Cf. United States v. Armstrong, 517 U. S. 456,
465. Because this inquiry is objective, the statements and motiva-
tions of the particular arresting officer are irrelevant at this stage.
After making the required showing, the plaintiff’s claim may proceed
in the same manner as claims where the plaintiff has met the
threshold showing of the absence of probable cause. Pp. 13–15.
712 Fed. Appx. 613, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER,
ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J.,
joined except as to Part II–D. THOMAS, J., filed an opinion concurring
in part and concurring in the judgment. GORSUCH, J., filed an opinion
concurring in part and dissenting in part. GINSBURG, J., filed an opin-
ion concurring in the judgment in part and dissenting in part.
SOTOMAYOR, J., filed a dissenting opinion.
Cite as: 587 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1174
_________________
LUIS A. NIEVES, ET AL., PETITIONERS v.
RUSSELL P. BARTLETT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 28, 2019]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Respondent Russell Bartlett sued petitioners—two
police officers—alleging that they retaliated against him
for his protected First Amendment speech by arresting
him for disorderly conduct and resisting arrest. The offic-
ers had probable cause to arrest Bartlett, and we now
decide whether that fact defeats Bartlett’s First Amend-
ment claim as a matter of law.
I
A
Bartlett was arrested during “Arctic Man,” a weeklong
winter sports festival held in the remote Hoodoo Moun-
tains near Paxson, Alaska. Paxson is a small community
that normally consists of a few dozen residents. But once
a year, upwards of 10,000 people descend on the area for
Arctic Man, an event known for both extreme sports and
extreme alcohol consumption. The mainstays are high-
speed ski and snowmobile races, bonfires, and parties.
During that week, the Arctic Man campground briefly
becomes one of the largest and most raucous cities in
2 NIEVES v. BARTLETT
Opinion of the Court
Alaska.
The event poses special challenges for law enforcement.
Snowmobiles, alcohol, and freezing temperatures do not
always mix well, and officers spend much of the week
responding to snowmobile crashes, breaking up fights, and
policing underage drinking. Given the remote location of
the event, Alaska flies in additional officers from around
the State to provide support. Still, the number of police
remains limited. Even during the busiest periods of the
event, only six to eight officers are on patrol at a time.
On the last night of Arctic Man 2014, Sergeant Luis
Nieves and Trooper Bryce Weight arrested Bartlett. The
parties dispute certain details about the arrest but agree
on the general course of events, some of which were cap-
tured on video by a local news reporter.
At around 1:30 a.m., Sergeant Nieves and Bartlett first
crossed paths. Nieves was asking some partygoers to
move their beer keg inside their RV because minors had
been making off with alcohol. According to Nieves, Bart-
lett began belligerently yelling to the RV owners that they
should not speak with the police. Nieves approached
Bartlett to explain the situation, but Bartlett was highly
intoxicated and yelled at him to leave. Rather than esca-
late the situation, Nieves left. Bartlett disputes that
account. According to Bartlett, he was not drunk at that
time and never yelled at Nieves. He claims it was Nieves
who became aggressive when Bartlett refused to speak
with him.
Several minutes later, Bartlett saw Trooper Weight
asking a minor whether he and his underage friends had
been drinking. According to Weight, Bartlett approached
in an aggressive manner, stood between Weight and the
teenager, and yelled with slurred speech that Weight
should not speak with the minor. Weight claims that
Bartlett then stepped very close to him in a combative
way, so Weight pushed him back. Sergeant Nieves saw
Cite as: 587 U. S. ____ (2019) 3
Opinion of the Court
the confrontation and rushed over, arriving right after
Weight pushed Bartlett. Nieves immediately initiated an
arrest, and when Bartlett was slow to comply with his
orders, the officers forced him to the ground and threat-
ened to tase him.
Again, Bartlett tells a different story. He denies being
aggressive, and claims that he stood close to Weight only
in an effort to speak over the loud background music. And
he was slow to comply with Nieves’s orders, not because he
was resisting arrest, but because he did not want to ag-
gravate a back injury. After Bartlett was handcuffed, he
claims that Nieves said: “[B]et you wish you would have
talked to me now.” 712 Fed. Appx. 613, 616 (CA9 2017).
The officers took Bartlett to a holding tent, where he
was charged with disorderly conduct and resisting arrest.
He had sustained no injuries during the episode and was
released a few hours later.
B
The State ultimately dismissed the criminal charges
against Bartlett, and Bartlett then sued the officers under
42 U. S. C. §1983, which provides a cause of action for
state deprivations of federal rights. As relevant here, he
claimed that the officers violated his First Amendment
rights by arresting him in retaliation for his speech. The
protected speech, according to Bartlett, was his refusal to
speak with Nieves earlier in the evening and his interven-
tion in Weight’s discussion with the underage partygoer.
The officers responded that they arrested Bartlett because
he interfered with an investigation and initiated a physi-
cal confrontation with Weight. The District Court granted
summary judgment for the officers. The court determined
that the officers had probable cause to arrest Bartlett and
held that the existence of probable cause precluded Bart-
lett’s First Amendment retaliatory arrest claim.
The Ninth Circuit disagreed. 712 Fed. Appx. 613.
4 NIEVES v. BARTLETT
Opinion of the Court
Relying on its prior decision in Ford v. Yakima, 706 F. 3d
1188 (2013), the court held that a plaintiff can prevail on a
First Amendment retaliatory arrest claim even in the face
of probable cause for the arrest. According to the Ninth
Circuit, Bartlett needed to show only (1) that the officers’
conduct would “chill a person of ordinary firmness from
future First Amendment activity,” and (2) that he had
advanced evidence that would “enable him ultimately to
prove that the officers’ desire to chill his speech was a but-
for cause” of the arrest. 712 Fed. Appx., at 616 (internal
quotation marks omitted). The court concluded that Bart-
lett had satisfied both requirements: A retaliatory arrest
is sufficiently chilling, and Bartlett had presented enough
evidence that his speech was a but-for cause of the arrest.
The only causal evidence relied on by the court was Bart-
lett’s affidavit alleging that Sergeant Nieves said “bet you
wish you would have talked to me now.” If that allegation
were true, the court reasoned, a jury might conclude that
the officers arrested Bartlett in retaliation for his state-
ments earlier that night.
The officers petitioned for review in this Court, and we
granted certiorari. 585 U. S. ___ (2018).
II
We are asked to resolve whether probable cause to make
an arrest defeats a claim that the arrest was in retaliation
for speech protected by the First Amendment. We have
considered this issue twice in recent years. On the first
occasion, we ultimately left the question unanswered
because we decided the case on the alternative ground of
qualified immunity. See Reichle v. Howards, 566 U. S.
658 (2012). We took up the question again last Term in
Lozman v. Riviera Beach, 585 U. S. ___ (2018). Lozman
involved unusual circumstances in which the plaintiff was
arrested pursuant to an alleged “official municipal policy”
of retaliation. Id., at ___ (slip op., at 11). Because those
Cite as: 587 U. S. ____ (2019) 5
Opinion of the Court
facts were “far afield from the typical retaliatory arrest
claim,” we reserved judgment on the broader question
presented and limited our holding to arrests that result
from official policies of retaliation. Id., at ___ (slip op., at
10). In such cases, we held, probable cause does not cate-
gorically bar a plaintiff from suing the municipality. Id.,at ___–___ (slip op., at 11–12). We now take up the ques-
tion once again, this time in a more representative case.
A
“[A]s a general matter the First Amendment prohibits
government officials from subjecting an individual to
retaliatory actions” for engaging in protected speech.
Hartman v. Moore, 547 U. S. 250, 256 (2006). If an official
takes adverse action against someone based on that for-
bidden motive, and “non-retaliatory grounds are in fact
insufficient to provoke the adverse consequences,” the
injured person may generally seek relief by bringing a
First Amendment claim. Ibid. (citing Crawford-El v.
Britton, 523 U. S. 574, 593 (1998); Mt. Healthy City Bd. of
Ed. v. Doyle, 429 U. S. 274, 283–284 (1977)).
To prevail on such a claim, a plaintiff must establish a
“causal connection” between the government defendant’s
“retaliatory animus” and the plaintiff ’s “subsequent in-
jury.” Hartman, 547 U. S., at 259. It is not enough to show
that an official acted with a retaliatory motive and that
the plaintiff was injured—the motive must cause the
injury. Specifically, it must be a “but-for” cause, meaning
that the adverse action against the plaintiff would not
have been taken absent the retaliatory motive. Id., at 260(recognizing that although it “may be dishonorable to act
with an unconstitutional motive,” an official’s “action
colored by some degree of bad motive does not amount to a
constitutional tort if that action would have been taken
anyway”).
For example, in Mt. Healthy, a teacher claimed that a
6 NIEVES v. BARTLETT
Opinion of the Court
school district refused to rehire him in retaliation for his
protected speech. We held that even if the teacher’s “pro-
tected conduct played a part, substantial or otherwise, in
[the] decision not to rehire,” he was not entitled to rein-
statement “if the same decision would have been reached”
absent his protected speech. 429 U. S., at 285. Regardless
of the motives of the school district, we concluded that the
First Amendment “principle at stake is sufficiently vindi-
cated if such an employee is placed in no worse a position
than if he had not engaged in the [protected speech].” Id.,at 285–286.
For a number of retaliation claims, establishing the
causal connection between a defendant’s animus and a
plaintiff ’s injury is straightforward. Indeed, some of our
cases in the public employment context “have simply
taken the evidence of the motive and the discharge as
sufficient for a circumstantial demonstration that the one
caused the other,” shifting the burden to the defendant to
show he would have taken the challenged action even
without the impermissible motive. Hartman, 547 U. S., at260 (citing Mt. Healthy, 429 U. S., at 287; Arlington
Heights v. Metropolitan Housing Development Corp., 429
U. S. 252, 270, n. 21 (1977)). But the consideration of
causation is not so straightforward in other types of retal-
iation cases.
In Hartman, for example, we addressed retaliatory
prosecution cases, where “proving the link between the
defendant’s retaliatory animus and the plaintiff ’s injury
. . . ‘is usually more complex than it is in other retaliation
cases.’ ” Lozman, 585 U. S., at ___ (slip op., at 8) (quoting
Hartman, 547 U. S., at 261). Unlike most retaliation
cases, in retaliatory prosecution cases the official with the
malicious motive does not carry out the retaliatory action
himself—the decision to bring charges is instead made by
a prosecutor, who is generally immune from suit and
whose decisions receive a presumption of regularity.
Cite as: 587 U. S. ____ (2019) 7
Opinion of the Court
Lozman, 585 U. S., at ___–___ (slip op., at 8–9). Thus,
even when an officer’s animus is clear, it does not neces-
sarily show that the officer “induced the action of a prose-
cutor who would not have pressed charges otherwise.”
Hartman, 547 U. S., at 263.
To account for this “problem of causation” in retaliatory
prosecution claims, Hartman adopted the requirement
that plaintiffs plead and prove the absence of probable
cause for the underlying criminal charge. Ibid.; see id., at
265–266. As Hartman explained, that showing provides a
“distinct body of highly valuable circumstantial evidence”
that is “apt to prove or disprove” whether retaliatory
animus actually caused the injury: “Demonstrating that
there was no probable cause for the underlying criminal
charge will tend to reinforce the retaliation evidence and
show that retaliation was the but-for basis for instigating
the prosecution, while establishing the existence of proba-
ble cause will suggest that prosecution would have oc-
curred even without a retaliatory motive.” Id., at 261.
Requiring plaintiffs to plead and prove the absence of
probable cause made sense, we reasoned, because the
existence of probable cause will be at issue in “practically
all” retaliatory prosecution cases, has “high probative
force,” and thus “can be made mandatory with little or no
added cost.” Id., at 265. Moreover, imposing that burden
on plaintiffs was necessary to suspend the presumption of
regularity underlying the prosecutor’s charging decision—
a presumption we “do not lightly discard.” Id., at 263; see
also id., at 265. Thus, Hartman requires plaintiffs in
retaliatory prosecution cases to show more than the sub-
jective animus of an officer and a subsequent injury; plain-
tiffs must also prove as a threshold matter that the deci-
sion to press charges was objectively unreasonable
because it was not supported by probable cause.
8 NIEVES v. BARTLETT
Opinion of the Court
B
Officers Nieves and Weight argue that the same no-
probable-cause requirement should apply to First
Amendment retaliatory arrest claims. Their primary
contention is that retaliatory arrest claims involve causal
complexities akin to those we identified in Hartman, and
thus warrant the same requirement that plaintiffs plead
and prove the absence of probable cause. Brief for Peti-
tioners 20–30.
As a general matter, we agree. As we recognized in
Reichle and reaffirmed in Lozman, retaliatory arrest
claims face some of the same challenges we identified in
Hartman: Like retaliatory prosecution cases, “retaliatory
arrest cases also present a tenuous causal connection
between the defendant’s alleged animus and the plaintiff ’s
injury.” Reichle, 566 U. S., at 668. The causal inquiry is
complex because protected speech is often a “wholly legit-
imate consideration” for officers when deciding whether to
make an arrest. Ibid.; Lozman, 585 U. S., at ___ (slip op.,
at 9). Officers frequently must make “split-second judg-
ments” when deciding whether to arrest, and the content
and manner of a suspect’s speech may convey vital infor-
mation—for example, if he is “ready to cooperate” or
rather “present[s] a continuing threat.” Id., at ___ (slip op.,
at 9) (citing District of Columbia v. Wesby, 583 U. S. ___,
___ (2018) (slip op., at 10) (“suspect’s untruthful and eva-
sive answers to police questioning could support probable
cause”)). Indeed, that kind of assessment happened in this
case. The officers testified that they perceived Bartlett to
be a threat based on a combination of the content and tone
of his speech, his combative posture, and his apparent
intoxication.
In addition, “[l]ike retaliatory prosecution cases, evi-
dence of the presence or absence of probable cause for the
arrest will be available in virtually every retaliatory arrest
case.” Reichle, 566 U. S., at 668. And because probable
Cite as: 587 U. S. ____ (2019) 9
Opinion of the Court
cause speaks to the objective reasonableness of an arrest,
see Ashcroft v. al-Kidd, 563 U. S. 731, 736 (2011), its
absence will—as in retaliatory prosecution cases—
generally provide weighty evidence that the officer’s ani-
mus caused the arrest, whereas the presence of probable
cause will suggest the opposite.
To be sure, Reichle and Lozman also recognized that the
two claims give rise to complex causal inquiries for some-
what different reasons. Unlike retaliatory prosecution
cases, retaliatory arrest cases do not implicate the pre-
sumption of prosecutorial regularity or necessarily involve
multiple government actors (although this case did).
Reichle, 566 U. S., at 668–669; Lozman, 585 U. S., at ___
(slip op., at 10). But regardless of the source of the causal
complexity, the ultimate problem remains the same. For
both claims, it is particularly difficult to determine whether
the adverse government action was caused by the of-
ficer’s malice or the plaintiff ’s potentially criminal con-
duct. See id., at ___ (slip op., at 9) (referring to “the
complexity of proving (or disproving) causation” in retalia-
tory arrest cases). Because of the “close relationship”
between the two claims, Reichle, 566 U. S., at 667, 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.
Bartlett, in defending the decision below, argues that
the “causation in retaliatory-arrest cases is not inherently
complex” because the “factfinder simply must determine
whether the officer intended to punish the plaintiff for the
plaintiff ’s protected speech.” Brief for Respondent 36–37;
see also post, at 5 (SOTOMAYOR, J., dissenting). That
approach fails to account for the fact that protected speech
is often a legitimate consideration when deciding whether
to make an arrest, and disregards the resulting causal
complexity previously recognized by this Court. See
10 NIEVES v. BARTLETT
Opinion of the Court
Reichle, 566 U. S., at 668; Lozman, 585 U. S., at ___ (slip
op., at 9).
Bartlett’s approach dismisses the need for any threshold
showing, moving directly to consideration of the subjective
intent of the officers. In the Fourth Amendment context,
however, “we have almost uniformly rejected invitations to
probe subjective intent.” al-Kidd, 563 U. S., at 737; see
also Kentucky v. King, 563 U. S. 452, 464 (2011) (“Legal
tests based on reasonableness are generally objective, and
this Court has long taken the view that evenhanded law
enforcement is best achieved by the application of objec-
tive standards of conduct, rather than standards that
depend upon the subjective state of mind of the officer.”
(internal quotation marks omitted)). Police officers con-
duct approximately 29,000 arrests every day—a dangerous
task that requires making quick decisions in “circum-
stances that are tense, uncertain, and rapidly evolving.”
Graham v. Connor, 490 U. S. 386, 397 (1989). To ensure
that officers may go about their work without undue ap-
prehension of being sued, we generally review their con-
duct under objective standards of reasonableness. See
Atwater v. Lago Vista, 532 U. S. 318, 351, and n. 22
(2001); Harlow v. Fitzgerald, 457 U. S. 800, 814–819
(1982). Thus, when reviewing an arrest, we ask “whether
the circumstances, viewed objectively, justify [the chal-
lenged] action,” and if so, conclude “that action was rea-
sonable whatever the subjective intent motivating the
relevant officials.” al-Kidd, 563 U. S., at 736 (internal
quotation marks omitted). A particular officer’s state of
mind is simply “irrelevant,” and it provides “no basis for
invalidating an arrest.” Devenpeck v. Alford, 543 U. S.
146, 153, 155 (2004).
Bartlett’s purely subjective approach would undermine
that precedent by allowing even doubtful retaliatory arrest
suits to proceed based solely on allegations about an ar-
resting officer’s mental state. See Lozman, 585 U. S., at
Cite as: 587 U. S. ____ (2019) 11
Opinion of the Court
___ (slip op., at 9). Because a state of mind is “easy to
allege and hard to disprove,” Crawford-El, 523 U. S., at
585, a subjective inquiry would threaten to set off “broad-
ranging discovery” in which “there often is no clear end to
the relevant evidence,” Harlow, 457 U. S., at 817. As a
result, policing certain events like an unruly protest would
pose overwhelming litigation risks. Any inartful turn of
phrase or perceived slight during a legitimate arrest could
land an officer in years of litigation. Bartlett’s standard
would thus “dampen the ardor of all but the most resolute,
or the most irresponsible, in the unflinching discharge of
their duties.” Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2
1949) (Learned Hand, C. J.). It would also compromise
evenhanded application of the law by making the constitu-
tionality of an arrest “vary from place to place and from
time to time” depending on the personal motives of indi-
vidual officers. Devenpeck, 543 U. S., at 154. Yet another
“predictable consequence” of such a rule is that officers
would simply minimize their communication during ar-
rests to avoid having their words scrutinized for hints of
improper motive—a result that would leave everyone
worse off. Id., at 155.
Adopting Hartman’s no-probable-cause rule in this
closely related context addresses those familiar concerns.
Absent such a showing, a retaliatory arrest claim fails.
But if the plaintiff establishes the absence of probable
cause, “then the Mt. Healthy test governs: The plaintiff
must show that the retaliation was a substantial or moti-
vating factor behind the [arrest], and, if that showing is
made, the defendant can prevail only by showing that the
[arrest] would have been initiated without respect to
retaliation.” Lozman, 585 U. S., at ___ (slip op., at 8)
(citing Hartman, 547 U. S., at 265–266). 1
——————
1 JUSTICE SOTOMAYOR would have us extend Mt. Healthy and rely on
that “tried and true” approach as the exclusive standard in the retalia-
12 NIEVES v. BARTLETT
Opinion of the Court
C
Our conclusion is confirmed by the common law ap-
proach to similar tort claims. When defining the contours
of a claim under §1983, we look to “common-law principles
that were well settled at the time of its enactment.” Ka-
lina v. Fletcher, 522 U. S. 118, 123 (1997); Manuel v. Joliet,
580 U. S. ___, ___ (2017) (slip op., at 12) (common law
principles “guide” the definition of claims under §1983).
As the parties acknowledge, when §1983 was enacted in
1871, there was no common law tort for retaliatory arrest
based on protected speech. See Brief for Petitioners 43;
Brief for Respondent 20. We therefore turn to the common
law torts that provide the “closest analogy” to retaliatory
arrest claims. Heck v. Humphrey, 512 U. S. 477, 484
(1994). The parties dispute whether the better analog is
false imprisonment or malicious prosecution. At common
law, false imprisonment arose from a “detention without
legal process,” whereas malicious prosecution was marked
“by wrongful institution of legal process.” Wallace v. Kato,
549 U. S. 384, 389–390 (2007). 2 Here, both claims suggest
the same result: The presence of probable cause should
generally defeat a First Amendment retaliatory arrest
claim. See generally Lozman, 585 U. S., at ___–___ (slip
op., at 4–6) (THOMAS, J., dissenting).
——————
tory arrest context. See post, at 1–5, 14 (dissenting opinion). But not
even respondent Bartlett argues for such a rule. And since our deci-
sions in Hartman and Reichle, no court of appeals has applied that
approach in retaliatory arrest cases of this sort. JUSTICE SOTOMAYOR
criticizes the Court for spending “[m]uch of its opinion . . . analogizing
to Hartman,” post, at 4, but of course Hartman is our precedent most
directly on point. To the extent retaliatory arrest cases raise concerns
distinct from that precedent, we have departed from Hartman to afford
greater First Amendment protection. See infra, at 13–15.
2 For our purposes, we need not distinguish between the torts of false
imprisonment and false arrest, which are “virtually synonymous.” 35
C. J. S., False Imprisonment §2, p. 522 (2009); see also Wallace, 549
U. S., at 388–389.
Cite as: 587 U. S. ____ (2019) 13
Opinion of the Court
Malicious prosecution required the plaintiff to show that
the criminal charge against him “was unfounded, and that
it was made without reasonable or probable cause, and
that the defendant in making or instigating it was actuated
by malice.” Wheeler v. Nesbitt, 24 How. 544, 549–550
(1861); see also Restatement of Torts §653 (1938). It has
long been “settled law” that malicious prosecution requires
proving “the want of probable cause,” and Bartlett does
not argue otherwise. Brown v. Selfridge, 224 U. S. 189,
191 (1912); see also Wheeler, 24 How., at 550 (noting that
“[w]ant of reasonable and probable cause” is an “element
in the action for a malicious criminal prosecution”).
For claims of false imprisonment, the presence of proba-
ble cause was generally a complete defense for peace
officers. See T. Cooley, Law of Torts 175 (1880); 1 F.
Hilliard, The Law of Torts or Private Wrongs 207–208,
and n. (a) (1859). In such cases, arresting officers were
protected from liability if the arrest was “privileged.” At
common law, peace officers were privileged to make war-
rantless arrests based on probable cause of the commis-
sion of a felony or certain misdemeanors. See Restate-
ment of Torts §§118, 119, 121 (1934); see also Cooley, Law
of Torts, at 175–176 (stating that peace officers who make
arrests based on probable cause “will be excused, even
though it appear afterwards that in fact no felony had
been committed”); see generally Atwater, 532 U. S., at340–345 (reviewing the history of warrantless arrests for
misdemeanors). Although the exact scope of the privilege
varied somewhat depending on the jurisdiction, the con-
sistent rule was that officers were not liable for arrests
they were privileged to make based on probable cause.
D
Although probable cause should generally defeat a
retaliatory arrest claim, a narrow qualification is war-
ranted for circumstances where officers have probable
14 NIEVES v. BARTLETT
Opinion of the Court
cause to make arrests, but typically exercise their discre-
tion not to do so. In such cases, an unyielding require-
ment to show the absence of probable cause could pose “a
risk that some police officers may exploit the arrest power
as a means of suppressing speech.” Lozman, 585 U. S., at
___ (slip op., at 10).
When §1983 was adopted, officers were generally privi-
leged to make warrantless arrests for misdemeanors only
in limited circumstances. See Restatement of Torts §121,
Comments e, h, at 262–263. Today, however, “statutes in
all 50 States and the District of Columbia permit warrant-
less misdemeanor arrests” in a much wider range of situa-
tions—often whenever officers have probable cause for
“even a very minor criminal offense.” Atwater, 532 U. S.,
at 344–345, 354; see id., at 355–360 (listing state
statutes).
For example, at many intersections, jaywalking is en-
demic but rarely results in arrest. If an individual who
has been vocally complaining about police conduct is
arrested for jaywalking at such an intersection, it would
seem insufficiently protective of First Amendment rights
to dismiss the individual’s retaliatory arrest claim on the
ground that there was undoubted probable cause for the
arrest. In such a case, because probable cause does little
to prove or disprove the causal connection between animus
and injury, applying Hartman’s rule would come at the
expense of Hartman’s logic.
For those reasons, we conclude that the no-probable-
cause requirement should not apply when a plaintiff pre-
sents objective evidence that he was arrested when other-
wise similarly situated individuals not engaged in the
same sort of protected speech had not been. Cf. United
States v. Armstrong, 517 U. S. 456, 465 (1996). That
showing addresses Hartman’s causal concern by helping to
establish that “non-retaliatory grounds [we]re in fact
insufficient to provoke the adverse consequences.” 547
Cite as: 587 U. S. ____ (2019) 15
Opinion of the Court
U. S., at 256. And like a probable cause analysis, it pro-
vides an objective inquiry that avoids the significant prob-
lems that would arise from reviewing police conduct under
a purely subjective standard. Because this inquiry is
objective, the statements and motivations of the particular
arresting officer are “irrelevant” at this stage. Devenpeck,
543 U. S., at 153. After making the required showing, the
plaintiff ’s claim may proceed in the same manner as
claims where the plaintiff has met the threshold showing
of the absence of probable cause. See Lozman, 585 U. S.,
at ___ (slip op., at 8).
* * *
In light of the foregoing, Bartlett’s retaliation claim
cannot survive summary judgment. As an initial matter,
the record contains insufficient evidence of retaliation on
the part of Trooper Weight. The only evidence of retalia-
tory animus identified by the Ninth Circuit was Bartlett’s
affidavit stating that Sergeant Nieves said “bet you wish
you would have talked to me now.” 712 Fed. Appx., at
616. But that allegation about Nieves says nothing about
what motivated Weight, who had no knowledge of Bart-
lett’s prior run-in with Nieves. Cf. Lozman, 585 U. S., at
___ (slip op., at 10) (plaintiff “likely could not have main-
tained a retaliation claim against the arresting officer”
when there was “no showing that the officer had any
knowledge of [the plaintiff ’s] prior speech”).
In any event, Bartlett’s claim against both officers can-
not succeed because they had probable cause to arrest
him. As the Court of Appeals explained:
“When Sergeant Nieves initiated Bartlett’s arrest, he
knew that Bartlett had been drinking, and he ob-
served Bartlett speaking in a loud voice and standing
close to Trooper Weight. He also saw Trooper Weight
push Bartlett back. . . . [T]he test is whether the in-
formation the officer had at the time of making the
16 NIEVES v. BARTLETT
Opinion of the Court
arrest gave rise to probable cause. We agree with the
district court that it did; a reasonable officer in Ser-
geant Nieves’s position could have concluded that
Bartlett stood close to Trooper Weight and spoke loudly
in order to challenge him, provoking Trooper
Weight to push him back.” 712 Fed. Appx., at 615 (ci-
tations and internal quotation marks omitted).
Because there was probable cause to arrest Bartlett, his
retaliatory arrest claim fails as a matter of law. Accord-
ingly, the judgment of the United States Court of Appeals
for the Ninth Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 587 U. S. ____ (2019) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1174
_________________
LUIS A. NIEVES, ET AL., PETITIONERS v.
RUSSELL P. BARTLETT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 28, 2019]
JUSTICE THOMAS, concurring in part and concurring in
the judgment.
When 42 U. S. C. §1983 was enacted, “the common law
recognized probable cause as an important element for
ensuring that arrest-based torts did not unduly interfere
with the objectives of law enforcement.” Lozman v. Rivi-
era Beach, 585 U. S. ___, ___ (2018) (THOMAS, J., dissent-
ing) (slip op., at 6). Applying that principle resolves this
case: “[P]laintiffs bringing a First Amendment retaliatory-
arrest claim under §1983 should have to plead and prove a
lack of probable cause.” Ibid. The Court acknowledges as
much, ante, at 12–13, and I join the portions of the Court’s
opinion adopting that rule.* I do not join Part II–D, how-
ever, because I do not agree that “a narrow qualification is
warranted for circumstances where officers have probable
cause to make arrests, but typically exercise their discre-
tion not to do so.” Ante, at 13–14. That qualification has
no basis in either the common law or our First Amend-
ment precedents.
As the Court explains, “[w]hen defining the contours of a
claim under §1983, we look to ‘common-law principles that
——————
* Because no party questions whether §1983 claims for retaliatory
arrests under the First Amendment are actionable, I assume that
§1983 permits such claims. See Lozman v. Riviera Beach, 585 U. S.
___, ___, n. 2 (2018) (THOMAS, J., dissenting) (slip op., at 3, n. 2).
2 NIEVES v. BARTLETT
Opinion of THOMAS, J.
were well settled at the time of its enactment.’ ” Ante, at
12. Because no common-law tort for retaliatory arrest in
violation of the freedom of speech existed when §1983 was
enacted, we “look to the common-law torts that ‘provid[e]
the closest analogy’ to this claim.” Lozman, 585 U. S., at
___ (opinion of THOMAS, J.) (slip op., at 4). Here, those
torts are false imprisonment, malicious arrest, and mali-
cious prosecution. Ibid.
The existence of probable cause generally excused an
officer from liability for these three torts, without regard
to the treatment of similarly situated individuals. For
instance, a constable who made an arrest “on reasonable
grounds of belief ” that a felony had been committed was
“excused” from liability for false imprisonment. T. Cooley,
Law of Torts 175 (1879) (Cooley); Lozman, supra, at ___–
___ (opinion of THOMAS, J.) (slip op., at 4–5). And the
absence of probable cause was central to both malicious
arrest and malicious prosecution. Cooley 180–181; Loz-
man, supra, at ___ (opinion of THOMAS, J.) (slip op., at 5).
As the Court puts it, “the consistent rule was that officers
were not liable for arrests they were privileged to make
based on probable cause.” Ante, at 13.
Rather than adhere to this rule, the majority carves out
an exception to the no-probable-cause requirement for
plaintiffs who “presen[t] objective evidence” that they were
“arrested when otherwise similarly situated individuals
not engaged in the same sort of protected speech had not
been.” Ante, at 14. The common law provides no support
for this exception. Indeed, the majority cites not a single
common-law case that supports imposing liability based
on an officer’s treatment of similarly situated individuals.
The majority instead suggests that its exception responds
to the fact that States today “ ‘permit warrantless misde-
meanor arrests’ ” for many “ ‘minor criminal offense[s],’ ”
whereas “[w]hen §1983 was adopted, officers were generally
privileged to make warrantless arrests for misdemeanors
Cite as: 587 U. S. ____ (2019) 3
Opinion of THOMAS, J.
only in limited circumstances.” Ibid. But discomfort with
the number of warrantless arrests that are privileged
today is an issue for state legislatures, not a license for
this Court to fashion an exception to a previously “con-
sistent rule.” Ante, at 13.
The majority’s exception is also untethered from our
First Amendment precedents. In Hartman v. Moore, 547
U. S. 250 (2006), we expressly declined to create any ex-
ceptions to the rule that a plaintiff alleging retaliatory
prosecution in violation of the First Amendment must
plead and prove the absence of probable cause. See id., at
264–266, and n. 10. The majority today imports its “quali-
fication” from our jurisprudence on selective-prosecution
claims. Ante, at 14, 15 (citing United States v. Armstrong,
517 U. S. 456, 465 (1996)). But “[t]he requirements for a
selective-prosecution claim draw on ‘ordinary equal pro-
tection standards,’ ” not the First Amendment. Id., at 465.
That jurisprudence therefore is not relevant here. Cf.
Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he
constitutional basis for objecting to intentionally dis-
criminatory application of laws is the Equal Protection
Clause . . . ”).
With no guidance from the common law or relevant
precedents, the majority crafts its exception as a matter of
policy. But this “narrow” qualification threatens to derail
our retaliation jurisprudence in several ways. For one,
although the majority’s stated concern is with “ ‘warrant-
less misdemeanor arrests’ ” for “ ‘very minor’ ” offenses like
“jaywalking,” ante, at 14, its exception apparently applies
to all offenses, including serious felonies. This overbroad
exception thus is likely to encourage protracted litigation
about which individuals are “similarly situated,” ibid.,
while doing little to vindicate First Amendment rights.
Moreover, the majority’s rule risks chilling law enforce-
ment officers from making arrests for fear of liability, thus
flouting the reasoning behind the emphasis on probable
4 NIEVES v. BARTLETT
Opinion of THOMAS, J.
cause in arrest-based torts at common law. Lozman,
supra, at ___–___ (opinion of THOMAS, J.) (slip op., at 4–5).
In short, the majority’s exception lacks the support of
history, precedent, and sound policy.
* * *
The requirement that plaintiffs bringing First Amend-
ment retaliatory-arrest claims plead and prove the ab-
sence of probable cause is supported by the common law
and our First Amendment precedents. The majority’s new
exception has no basis in either. Accordingly, I join all but
Part II–D of the majority opinion.
Cite as: 587 U. S. ____ (2019) 1
Opinion of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1174
_________________
LUIS A. NIEVES, ET AL., PETITIONERS v.
RUSSELL P. BARTLETT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 28, 2019]
JUSTICE GORSUCH, concurring in part and dissenting in
part.
No one agrees who started the trouble at the 2014 Alaska
Arctic Man Festival, but everyone agrees two troopers
ended it by arresting Russell Bartlett for harassing one of
them. And it’s that arrest that led to this lawsuit. Mr.
Bartlett alleges that the real reason the troopers arrested
him had nothing to do with harassment and everything to
do with his decision to exercise his First Amendment free
speech rights by voicing his opinions to the troopers. Mr.
Bartlett contends that the officers’ retaliation against his
First Amendment protected speech entitles him to damag-
es under 42 U. S. C. §1983. For their part, the troopers
insist that the fact they had probable cause to arrest Mr.
Bartlett for some crime, or really any crime, should be
enough to shield them from liability.
The parties approach their dispute from some common
ground. Both sides accept that an officer violates the First
Amendment when he arrests an individual in retaliation
for his protected speech. They seem to agree, too, that the
presence of probable cause does not undo that violation or
erase its significance. And for good reason. History shows
that governments sometimes seek to regulate our lives
finely, acutely, thoroughly, and exhaustively. In our own
time and place, criminal laws have grown so exuberantly
2 NIEVES v. BARTLETT
Opinion of GORSUCH, J.
and come to cover so much previously innocent conduct
that almost anyone can be arrested for something. If the
state could use these laws not for their intended purposes
but to silence those who voice unpopular ideas, little would
be left of our First Amendment liberties, and little would
separate us from the tyrannies of the past or the malig-
nant fiefdoms of our own age. The freedom to speak with-
out risking arrest is “one of the principal characteristics by
which we distinguish a free nation.” Houston v. Hill, 482
U. S. 451, 463 (1987).
So if probable cause can’t erase a First Amendment
violation, the question becomes whether its presence at
least forecloses a civil claim for damages as a statutory
matter under §1983. But look at that statute as long as
you like and you will find no reference to the presence or
absence of probable cause as a precondition or defense to
any suit. Instead, the statute imposes liability on anyone
who, under color of state law, subjects another person “to
the deprivation of any rights, privileges, or immunities
secured by the Constitution.” Maybe it would be good
policy to graft a no-probable-cause requirement onto the
statute, as the officers insist; or maybe not. Either way,
that’s an appeal better directed to Congress than to this
Court. Our job isn’t to write or revise legislative policy but
to apply it faithfully.
Admittedly, though, that’s not quite the end of the
statutory story. Courts often assume that Congress
adopts statutes against the backdrop of the common law.
And, for this reason, we generally read §1983’s terms “in
harmony with general principles of tort immunities and
defenses” that existed at the time of the statute’s adoption.
Imbler v. Pachtman, 424 U. S. 409, 418 (1976). As the
officers before us are quick to point out, too, law enforce-
ment agents who made a lawful arrest at the time of
§1983’s adoption couldn’t be held liable at common law for
the tort of false arrest or false imprisonment. Of course,
Cite as: 587 U. S. ____ (2019) 3
Opinion of GORSUCH, J.
at common law a police officer often needed a warrant to
execute a lawful arrest. But today warrantless arrests are
often both authorized by state law and permitted by the
Constitution (as this Court has interpreted it), so long as
the officer possesses probable cause to believe a crime has
been committed. And, given this development, you might
wonder if the presence of probable cause should be enough
to foreclose any First Amendment claim arising out of an
arrest.
But that much doesn’t follow. As the officers’ own rea-
soning exposes, the point of the common law tort of false
arrest or false imprisonment was to remedy arrests and
imprisonments effected without lawful authority. See
Director General of Railroads v. Kastenbaum, 263 U. S. 25,
27 (1923); accord, Brief for United States as Amicus Cu-
riae 9. So maybe probable cause should be enough today to
defeat claims for false arrest or false imprisonment, given
that arrests today are usually legally authorized if sup-
ported by probable cause. But that doesn’t mean probable
cause is also enough to defeat a First Amendment retalia-
tory arrest claim. The point of this kind of claim isn’t to
guard against officers who lack lawful authority to make
an arrest. Rather, it’s to guard against officers who abuse
their authority by making an otherwise lawful arrest for
an unconstitutional reason.
Here’s another way to look at it. The common law tort
of false arrest translates more or less into a Fourth
Amendment claim. That’s because our precedent consid-
ers a warrantless arrest unsupported by probable cause—
the sort that gave rise to a false arrest claim at common
law—to be an unreasonable seizure in violation of the
Fourth Amendment. See Manuel v. Joliet, 580 U. S. ___,
___ (2017) (slip op., at 10). But the First Amendment
operates independently of the Fourth and provides differ-
ent protections. It seeks not to ensure lawful authority to
arrest but to protect the freedom of speech.
4 NIEVES v. BARTLETT
Opinion of GORSUCH, J.
Here’s a way to test the point, too. Everyone accepts
that a detention based on race, even one otherwise author-
ized by law, violates the Fourteenth Amendment’s Equal
Protection Clause. In Yick Wo v. Hopkins, 118 U. S. 356(1886), for example, San Francisco jailed many Chinese
immigrants for operating laundries without permits but
took no action against white persons guilty of the same
infraction. Even if probable cause existed to believe the
Chinese immigrants had broken a valid law—even if they
had in fact violated the law—this Court held that the
city’s discriminatory enforcement violated the Fourteenth
Amendment. Id., at 373–374; see also Whren v. United
States, 517 U. S. 806, 813 (1996). Following our lead, the
courts of appeals have recognized that §1983 plaintiffs
alleging racially selective arrests in violation of the Four-
teenth Amendment don’t have to show a lack of probable
cause, even though they might have to show a lack of
probable cause to establish a violation of the Fourth
Amendment: “[S]imply because a practice passes muster
under the Fourth Amendment (arrest based on probable
cause) does not mean that unequal treatment with respect
to that practice is consistent with equal protection.”
Hedgepeth v. Washington Metropolitan Area Transit
Auth., 386 F. 3d 1148, 1156 (CADC 2004); see also Gibson
v. Superintendent of N. J. Dept. of Law and Public Safety–
Div. of State Police, 411 F. 3d 427, 440 (CA3 2005); Mar-
shall v. Columbia Lea Regional Hospital, 345 F. 3d 1157,
1166 (CA10 2003); Vakilian v. Shaw, 335 F. 3d 509, 521
(CA6 2003); Johnson v. Crooks, 326 F. 3d 995, 999–1000
(CA8 2003); Holland v. Portland, 102 F. 3d 6, 11 (CA1
1996).
I can think of no sound reason why the same shouldn’t
hold true here. Like a Fourteenth Amendment selective
arrest claim, a First Amendment retaliatory arrest claim
serves a different purpose than a Fourth Amendment
unreasonable arrest claim, and that purpose does not
Cite as: 587 U. S. ____ (2019) 5
Opinion of GORSUCH, J.
depend on the presence or absence of probable cause. We
thus have no legitimate basis for engrafting a no-probable-
cause requirement onto a First Amendment retaliatory
arrest claim.
But while it would be a mistake to think the absence of
probable cause is an essential element of a First Amend-
ment retaliatory arrest claim under §1983—or that the
presence of probable cause is an absolute defense to such a
claim—I acknowledge that it may also be a mistake to
assume probable cause is entirely irrelevant to the analy-
sis. It seems to me that probable cause to arrest could still
bear on the claim’s viability in at least two ways that
warrant further exploration in future cases.
First, consider causation. To show an arrest violated
the First Amendment, everyone agrees a plaintiff must
prove the officer would not have arrested him but for his
protected speech. And if the only offense for which proba-
ble cause to arrest existed was a minor infraction of the
sort that wouldn’t normally trigger an arrest in the cir-
cumstances—or if the officer couldn’t identify a crime for
which probable cause existed until well after the arrest—
then causation might be a question for the jury. By con-
trast, if the officer had probable cause at the time of the
arrest to think the plaintiff committed a serious crime of
the sort that would nearly always trigger an arrest regard-
less of speech, then (absent extraordinary circumstances)
it’s hard to see how a reasonable jury might find that the
plaintiff ’s speech caused the arrest. In cases like that, it
would seem that officers often will be entitled to dismissal
on the pleadings or summary judgment.
In the name of causation concerns, the officers ask us to
go further still and hold that a plaintiff can never prove
protected speech caused his arrest without first showing
that the officers lacked probable cause to make an arrest.
But that absolute rule doesn’t wash with common experi-
ence. No one doubts that officers regularly choose against
6 NIEVES v. BARTLETT
Opinion of GORSUCH, J.
making arrests, especially for minor crimes, even when
they possess probable cause. So the presence of proba-
ble cause does not necessarily negate the possibility that
an arrest was caused by unlawful First Amendment
retaliation.
If logic doesn’t support their argument, the officers
reply, at least precedent does. They point to Hartman v.
Moore, 547 U. S. 250 (2006), where the plaintiff alleged
that a law enforcement officer retaliated against him for
his speech by convincing a prosecutor to bring criminal
charges against him. This Court held the claim presented
a “distinct problem of causation” that could be overcome
only with proof that the prosecutor lacked probable cause
for the charges. Id., at 263. And as a matter of precedent,
the officers argue, what was true there should hold true
here.
But Hartman does not demand nearly as much of us as
the officers suggest. Hartman justified its rule by explain-
ing that the “causal connection required” in that case
wasn’t just between the officer’s retaliatory intent and his
own injurious action. Instead, it was between the officer’s
intent and the injurious action of the prosecutor, whose
charging decision was subject to a “presumption of regu-
larity.” Id., at 262–263. In that particular context, Hart-
man said, proof that the prosecutor lacked probable cause
was necessary to “bridge the gap between the [officer’s]
motive and the prosecutor’s action.” Id., at 263. But
Hartman made equally clear that its reasoning did not
extend to “ordinary retaliation claims, where the govern-
ment agent allegedly harboring the animus is also the
individual allegedly taking the adverse action.” Id., at
259–260. And that describes a retaliatory arrest claim
like Mr. Bartlett’s to a tee. So while probable cause may
wind up defeating causation in some retaliatory arrest
cases, nothing in our precedent (let alone logic) suggests
that causation is always unprovable just because the
Cite as: 587 U. S. ____ (2019) 7
Opinion of GORSUCH, J.
officer had probable cause to arrest.
Second, our precedent suggests the possibility that
probable cause may play a role in light of the separation of
powers and federalism. In United States v. Armstrong,
517 U. S. 456 (1996), a plaintiff alleged that he was prose-
cuted because of his race. This Court responded by ac-
knowledging that racially selective prosecutions can vio-
late the Equal Protection Clause even when the prosecutor
possesses probable cause to believe a crime has been
committed. But because the decision whether to institute
criminal charges is one our Constitution vests in state and
federal executive officials, not judges, this Court also held
that, to respect the separation of powers and federalism, a
plaintiff must present “ ‘clear evidence’ ” of discrimination
when a federal or state official possesses probable cause to
support his prosecution. Id., at 465. Explaining the con-
tent of the clear evidence requirement, this Court indi-
cated that a plaintiff generally must produce evidence that
the prosecutor failed to charge other similarly situated
persons. At the same time, however, the Court also sug-
gested that equally clear evidence in the form of “ ‘direct
admissions by prosecutors of discriminatory purpose’ ”
might be enough to allow a claim to proceed. Id., at 469,
n. 3 (alterations omitted).
Though this case involves a retaliatory arrest claim
rather than a selective prosecution claim, it’s at least an
open question whether the concerns that drove this
Court’s decision in Armstrong may be in play here. No one
before us argues that Armstrong was wrongly decided.
And the Court today seems to indicate that something like
Armstrong’s standard might govern a retaliatory arrest
claim when probable cause exists to support an arrest.
See ante, at 14 (citing Armstrong). Some courts of appeals,
too, have already applied Armstrong to claims alleging
selective arrest under the Fourteenth Amendment. See,
e.g., United States v. Mason, 774 F. 3d 824, 829–830 (CA4
8 NIEVES v. BARTLETT
Opinion of GORSUCH, J.
2014); United States v. Alcaraz-Arellano, 441 F. 3d 1252,
1264 (CA10 2006); Johnson, 326 F. 3d, at 1000.
At the same time, enough questions remain about Arm-
strong’s potential application that I hesitate to speak
definitively about it today. Some courts of appeals have
argued that Armstrong should not extend, at least without
qualification, beyond prosecutorial decisions to arrests by
police. These courts have suggested that the presump-
tions of regularity and immunity that usually attach to
official prosecutorial decisions do not apply equally in the
less formal setting of police arrests. They’ve reasoned, too,
that comparative data about similarly situated individuals
may be less readily available for arrests than for prosecu-
torial decisions, and that other kinds of evidence—such as
an officer’s questions and comments to the defendant—
may be equally if not more probative in the arrest context.
See, e.g., United States v. Sellers, 906 F. 3d 848, 856 (CA9
2018); United States v. Washington, 869 F. 3d 193, 219
(CA3 2017); United States v. Davis, 793 F. 3d 712, 720–
721 (CA7 2015); Marshall, 345 F. 3d, at 1168. Impor-
tantly, we did not grant certiorari to resolve exactly how
Armstrong might apply to retaliatory arrest claims. Nor did
the briefing before us explore the competing arguments in
this circuit split. And given all this, I believe it would be
rash for us to do more at this point than acknowledge the
possibility of Armstrong’s application.
Dissenting, JUSTICE SOTOMAYOR reads the majority
opinion as adopting a rigid rule (more rigid, in fact, than
Armstrong’s) that First Amendment retaliatory arrest
plaintiffs who can’t prove the absence of probable cause
must produce “comparison-based evidence” in every case.
Post, at 4. But I do not understand the majority as going
that far. The only citation the majority offers in support of
its new standard is Armstrong, which expressly left open
the possibility that other kinds of evidence, such as admis-
sions, might be enough to allow a claim to proceed. Given
Cite as: 587 U. S. ____ (2019) 9
Opinion of GORSUCH, J.
that, I retain hope that lower courts will apply today’s
decision “commonsensically,” post, at 12, and with sensi-
tivity to the competing arguments about whether and how
Armstrong might apply in the arrest setting.
For today, I believe it is enough to resolve the question
on which we did grant certiorari—whether “probable
cause defeats . . . a First Amendment retaliatory-arrest
claim under §1983.” Pet. for Cert. i. I would hold, as the
majority does, that the absence of probable cause is not an
absolute requirement of such a claim and its presence is
not an absolute defense. At the same time, I would also
acknowledge that this does not mean the presence of
probable cause is categorically irrelevant: It may bear on
causation, and it may play a role under Armstrong. But
rather than attempt to sort out precisely when and how
probable cause plays a role in First Amendment claims, I
would reserve decision on those questions until they are
properly presented to this Court and we can address them
with the benefit of full adversarial testing.
Cite as: 587 U. S. ____ (2019) 1
Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1174
_________________
LUIS A. NIEVES, ET AL., PETITIONERS v.
RUSSELL P. BARTLETT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 28, 2019]
JUSTICE GINSBURG, concurring in the judgment in part
and dissenting in part.
Arrest authority, as several decisions indicate, can be
abused to disrupt the exercise of First Amendment speech
and press rights. See, e.g., Lacey v. Maricopa County, 693
F. 3d 896, 907–910 (CA9 2012) (en banc) (newspaper pub-
lishers alleged they were arrested in nighttime raid after
publishing story on law enforcement’s investigation of the
newspaper); Roper v. New York, 2017 WL 2483813, *1
(SDNY, June 7, 2017) (photographers documenting Black
Lives Matter protest alleged they were arrested for stand-
ing in street and failing to use crosswalk; sidewalks and
crosswalks were blocked by police); Morse v. San Francisco
Bay Area Rapid Transit Dist. (BART), 2014 WL 572352,
*1–*7 (ND Cal., Feb. 11, 2014) (only journalist arrested at
protest was journalist critical of Bay Area Rapid Transit
Police). Given the array of laws proscribing, e.g., breach of
the peace, disorderly conduct, obstructing public ways,
failure to comply with a peace officer’s instruction, and
loitering, police may justify an arrest as based on probable
cause when the arrest was in fact prompted by a retalia-
tory motive. If failure to show lack of probable cause defeats
an action under 42 U. S. C. §1983, only entirely baseless
arrests will be checked. I remain of the view that the
Court’s decision in Mt. Healthy City Bd. of Ed. v. Doyle,
2 NIEVES v. BARTLETT
Opinion of GINSBURG, J.
429 U. S. 274 (1977), strikes the right balance: The plain-
tiff bears the burden of demonstrating that unconstitu-
tional animus was a motivating factor for an adverse
action; the burden then shifts to the defendant to demon-
strate that, even without any impetus to retaliate, the
defendant would have taken the action complained of. See
Hartman v. Moore, 547 U. S. 250, 266–267 (2006)
(GINSBURG, J., dissenting).
In this case, I would reverse the Ninth Circuit’s judg-
ment as to Trooper Weight. As the Court points out, the
record is bereft of evidence of retaliation on Weight’s part.
See ante, at 15. As to Sergeant Nieves, there is some
evidence of animus in Nieves’ statement, “bet you wish
you would have talked to me now,” App. 376, but perhaps
not enough to survive summary judgment. Cf. Hig-
ginbotham v. Sylvester, 741 Fed. Appx. 28, 31 (CA2 2018)
(“[A] reasonable factfinder could not find that [the plain-
tiff ’s] exercise of his First Amendment right . . . was the
‘but-for’ cause of his arrest.”). In any event, I would not
use this thin case to state a rule that will leave press
members and others exercising First Amendment rights
with little protection against police suppression of their
speech.
Cite as: 587 U. S. ____ (2019) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1174
_________________
LUIS A. NIEVES, ET AL., PETITIONERS v.
RUSSELL P. BARTLETT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 28, 2019]
JUSTICE SOTOMAYOR, dissenting.
We granted certiorari to decide whether probable cause
alone always suffices to defeat a First Amendment retalia-
tory arrest claim under 42 U. S. C. §1983. The Court
answers that question “no”—a correct and sensible bottom
line on which eight Justices agree. There is no basis in
§1983 or in the Constitution to withhold a remedy for an
arrest that violated the First Amendment solely because
the officer could point to probable cause that some offense,
no matter how trivial or obviously pretextual, has
occurred.
Unfortunately, a slimmer majority of the Court chooses
not to stop there. The majority instead announces a dif-
ferent rule: that a showing of probable cause will defeat a
§1983 First Amendment retaliatory arrest claim unless
the person arrested happens to be able to show that “oth-
erwise similarly situated individuals” whose speech dif-
fered were not arrested. Ante, at 14. The Court barely
attempts to explain where in the First Amendment or
§1983 it finds any grounding for that rule, which risks
letting flagrant violations go unremedied. Because the
correct approach would be simply to apply the well-
established, carefully calibrated standards that govern
First Amendment retaliation claims in other contexts, I
respectfully dissent.
2 NIEVES v. BARTLETT
SOTOMAYOR, J., dissenting
I
As JUSTICE GORSUCH explains, the issue here is not
whether an arrest motivated by protected speech may
violate the First Amendment despite probable cause for
the arrest; the question is under what circumstances
§1983 permits a remedy for such a violation. See ante, at
1–2 (opinion concurring in part and dissenting in part).
From that common starting point, JUSTICE GORSUCH and
I travel far down the same path. I agree that neither the
text nor the common-law backdrop of §1983 supports
imposing on First Amendment retaliatory arrest claims a
probable-cause requirement that we would not impose in
other contexts. See ante, at 2–4. I agree that Hartman v.
Moore, 547 U. S. 250 (2006), turned on concerns specific to
malicious prosecution, and that its automatic probable-
cause bar therefore does not extend to claims like this one.
See ante, at 6. And I agree that—while probable cause
has undeniable evidentiary significance to the underlying
question of what motivated an arrest—some arrests are
demonstrably retaliation for protected speech, notwith-
standing probable cause of some coincidental infraction.
See ante, at 5–6; see also ante, at 1 (GINSBURG, J., concur-
ring in judgment in part and dissenting in part). Plaintiffs
should have a meaningful opportunity to prove such
claims when they arise.
I follow this logic to its natural conclusion: Courts
should evaluate retaliatory arrest claims in the same
manner as they would other First Amendment retaliation
claims. Accord, ante, at 1–2 (opinion of GINSBURG, J.).
The standard framework for distinguishing legitimate
exercises of governmental authority from those intended
to chill protected speech is well established. See Mt.
Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977).
The plaintiff must first establish that constitutionally
protected conduct was a “ ‘substantial’ ” or “ ‘motivating’ ”
factor in the challenged governmental action (here, an
Cite as: 587 U. S. ____ (2019) 3
SOTOMAYOR, J., dissenting
arrest). Ibid. If the plaintiff can make that threshold
showing, the question becomes whether the governmental
actor (here, the arresting officer) can show that the same
decision would have been made regardless of the protected
conduct. Ibid. If not, the governmental actor is liable.
Ibid. In other words, if retaliatory animus was not a “but-
for cause” of an arrest, a suit seeking to hold the arresting
officer liable will fail “for lack of causal connection be-
tween unconstitutional motive and resulting harm.”
Hartman, 547 U. S., at 260; see also Lozman v. Riviera
Beach, 585 U. S. ___, ___ (2018) (slip op., at 7).
This timeworn standard is by no means easily satisfied.
Even in cases where there is “proof of some retaliatory
animus,” Hartman, 547 U. S., at 260, if evidence of retalia-
tory motive is weak, or evidence of nonretaliatory motive
is strong, but-for causation will generally be lacking. That
is why probable cause to believe that someone was a serial
killer would defeat any First Amendment retaliatory
arrest claim—even if, say, there were evidence that the
officers also detested the suspect’s political beliefs.
With sufficient evidence of retaliatory motive and suffi-
ciently weak evidence of probable cause, however, Mt.
Healthy is surmountable. Its orderly framework thus
“protects against the invasion of constitutional rights”
while burdening legitimate exercises of governmental
authority only so far as is “necessary to the assurance of
those rights.” Mt. Healthy, 429 U. S., at 287; see ante, at
1–2 (opinion of GINSBURG, J.) (Mt. Healthy “strikes the
right balance”).
II
Regrettably, the Court casts aside the Mt. Healthy
standard for many arrests. It instead announces that
courts should look beyond the presence of probable cause
only when (in its view) the evidence of a constitutional
violation is “objective” enough to warrant further in-
4 NIEVES v. BARTLETT
SOTOMAYOR, J., dissenting
quiry—namely, when a plaintiff can muster evidence “that
he was arrested when otherwise similarly situated indi-
viduals not engaged in the same sort of protected speech
had not been.” Ante, at 14. Plaintiffs who would rely on
other evidence to prove a First Amendment retaliatory
arrest claim appear to be out of luck, even if they could
offer other, unassailable proof of an officer’s unconstitu-
tional “statements and motivations.” Ibid.
To give partial credit where due: The Court sensibly
rejects the absolute probable-cause bar urged by petition-
ers and embraced by JUSTICE THOMAS, see ante, at 1
(opinion concurring in part and concurring in judgment),
and its contrary rule will at least allow the First Amend-
ment to operate in some cases where it is sorely needed.
The majority’s reasons for imposing a probable-cause bar
in some cases but not others, however, do not withstand
scrutiny. And by arbitrarily insisting upon comparison-
based evidence, the majority’s rule fences out First
Amendment violations for which redress is equally if not
more “warranted,” ante, at 13, leaving the public exposed
potentially to flagrant abuses.
A
The Court’s rationale for the rule it ultimately adopts is
hard to discern and, once unearthed, not persuasive.
Much of its opinion is spent analogizing to Hartman and
to common-law privileges. See ante, at 8–9, 12–13. For
the reasons JUSTICE GORSUCH explains, that reasoning is
not sound. See ante, at 2–4, 6. Those authorities, in any
event, do not support the novel rule the Court imposes.
What remains is the majority’s practical concern about
applying normal First Amendment standards in this
context, as well as a handful of inapposite cases involving
different constitutional rights.
On the practical side, the majority worries that because
discerning the connection between an arrest and a retalia-
Cite as: 587 U. S. ____ (2019) 5
SOTOMAYOR, J., dissenting
tory motive may involve “causal complexities,” ante, at 8;
some plaintiffs who raise dubious challenges to lawful
arrests may evade early dismissal under Mt. Healthy, see
ante, at 10–11. Our precedents do not permit an interpre-
tation of §1983 to rest on such “a freewheeling policy
choice,” Malley v. Briggs, 475 U. S. 335, 342 (1986), and
in any event the majority’s concerns do not withstand
scrutiny.
With regard to the majority’s concern that establishing
a causal link to retaliatory animus will sometimes be
complex: That is true of most unconstitutional motive
claims, yet we generally trust that courts are up to the
task of managing them. See Crawford-El v. Britton, 523
U. S. 574, 597–601 (1998). And the Mt. Healthy standard
accounts for the delicacy of such inquiries with its but-for
causation requirement, calibrated to balance governmen-
tal interests with individual rights. See 429 U. S., at 287.
As for the risk of litigating dubious claims, the Court
pays too high a price to avoid what may well be a marginal
inconvenience. Prevailing First Amendment standards
have long governed retaliatory arrest cases in the Ninth
Circuit, and experience there suggests that trials in these
cases are rare—the parties point to only a handful of cases
that have reached trial in more than a decade. See Brief
for Petitioners 36–39 (identifying four examples); Brief for
Respondent 42–49 (discussing those and other Ninth
Circuit cases). 1 Even accepting that, every so often, a
——————
1 The majority implies that the Ninth Circuit does not apply Mt.
Healthy. Ante, at 12, n. 1 (“since . . . Hartman and Reichle, no court of
appeals has applied [the Mt. Healthy] approach”). That is not readily
apparent. Because Hartman’s no-probable-cause requirement does not
apply to retaliatory police action in the Ninth Circuit, such claims are
handled as “ ‘ordinary’ retaliation claim[s],” Skoog v. County of Clacka-
mas, 469 F. 3d 1221, 1234 (2006), which in the Ninth Circuit (as
elsewhere) means that retaliatory motive must be the “but-for cause of
the defendant’s action,” id., at 1232. That but-for causation require-
ment for retaliation claims derives from Mt. Healthy. See Hartman v.
6 NIEVES v. BARTLETT
SOTOMAYOR, J., dissenting
police officer who made a legitimate arrest might have to
explain that arrest to a jury, that is insufficient reason to
curtail the First Amendment. No legal standard bats a
thousand, and district courts already possess helpful tools
to minimize the burdens of litigation in cases alleging
constitutionally improper motives. See Crawford-El, 523
U. S., at 597–601. In addition, the burden of a (presuma-
bly indemnified 2) officer facing trial pales in comparison to
the importance of guarding core First Amendment activity
against the clear potential for abuse that accompanies the
arrest power. See Lozman, 585 U. S., at ___ (slip op., at
12); Part II–B–2, infra.
Finally, and more fundamentally, even if the majority’s
practical concerns were valid, they would not justify the
Court’s mix-and-match approach to constitutional law.
The Court relies heavily on Devenpeck v. Alford, 543 U. S.
146, 153–154 (2004), which held that an arresting officer’s
state of mind does not matter for purposes of determining
whether a Fourth Amendment seizure was supported by
probable cause. From this Fourth Amendment holding,
the Court extrapolates that First Amendment plaintiffs
must show a lack of probable cause (or satisfy its new
comparison-based workaround) before their retaliation
——————
Moore, 547 U. S. 250, 260 (2006); Crawford-El v. Britton, 523 U. S. 574,
593 (1998); see also Lacey v. Maricopa County, 693 F. 3d 896, 916–917
(CA9 2012) (en banc) (retaliatory arrest plaintiff must show that
deterrence of speech “was a substantial or motivating factor” and also
“ultimately” be able to show “ ‘but-for causation’ ” (quoting Hartman’s
discussion of Mt. Healthy)).
In any event, the majority’s criticism is a red herring. There is
nothing novel about applying Mt. Healthy in the retaliatory arrest
context. E.g., Lozman v. Riviera Beach, 585 U. S. ___, ___–___ (2018)
(slip op., at 12–13). The same cannot be said of the test concocted by
the majority.
2 See generally Schwartz, Police Indemnification, 89 N. Y. U. L. Rev.
885, 890 (2014) (empirical study finding that “[p]olice officers are
virtually always indemnified”).
Cite as: 587 U. S. ____ (2019) 7
SOTOMAYOR, J., dissenting
claims can proceed. See ante, at 11, 14.
This analogy is misguided, and the Court has rightly
disavowed it before. In Whren v. United States, 517 U. S.
806 (1996), the Court explained that while “[s]ubjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis,” that does not make evidence of an
officer’s “actual motivations” any less relevant to claims of
“selective enforcement” under the Equal Protection
Clause. Id., at 813; accord, ante, at 4 (opinion of
GORSUCH, J.). First Amendment retaliation claims and
equal protection claims are indistinguishable for these
purposes; both inherently require inquiry into “an official’s
motive.” Crawford-El, 523 U. S., at 585. Thus, even if the
“[s]ubjective intent of the arresting officer . . . is simply no
basis for invalidating an arrest” under the Fourth
Amendment, Devenpeck, 543 U. S., at 154–155, when it
comes to First Amendment freedom of speech, “the gov-
ernment’s reason” is often “what counts,” see Heffernan v.
City of Paterson, 578 U. S. ___, ___ (2016) (slip op., at 6).
Far from supporting the novel burden the Court imposes
on First Amendment retaliatory arrest plaintiffs, then, the
analogy on which the majority’s analysis depends is an
unfounded exercise in hybridizing two different constitu-
tional protections. The result is a Frankenstein-like con-
stitutional tort that may do more harm than good.
B
Were it simply an unorthodox solution to an illusory
problem, the standard announced today would be benign.
But by rejecting direct evidence of unconstitutional mo-
tives in favor of more convoluted comparative proof, the
majority’s standard proposes to ration First Amendment
protection in an illogical manner. And those arbitrary
legal results in turn will breed opportunities for the rare
ill-intentioned officer to violate the First Amendment
without consequence—and, in some cases, openly and
8 NIEVES v. BARTLETT
SOTOMAYOR, J., dissenting
unabashedly. These are costs the Court should not
tolerate.
1
The basic error of the Court’s new rule is that it arbi-
trarily fetishizes one specific type of motive evidence—
treatment of comparators—at the expense of other modes
of proof. 3 In particular, the majority goes out of its way to
forswear reliance on an officer’s own “statements,” ante, at
15, even though such direct admissions may often be the
best available evidence of unconstitutional motive. As a
result, the Court’s standard in some cases will have the
strange effect of requiring courts to blind themselves to
smoking-gun evidence while simultaneously insisting
upon an inferential sort of proof that, though potentially
powerful, can be prohibitively difficult to obtain.
The Court’s decision to cast aside evidence of the arrest-
ing officer’s own statements is puzzling. See ibid. In
other contexts, when the ultimate question is why a deci-
sionmaker took a particular action, the Court considers
the decisionmaker’s own statements (favorable or not) to
be highly relevant evidence. See, e.g., Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
___, ___–___ (2018) (slip op., at 13–14); Cooper v. Harris,
581 U. S. ___, ___–___ (2017) (slip op., at 10–12); Foster v.
Chatman, 578 U. S. ___, ___–___ (2016) (slip op., at 10–
25); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U. S. 520, 540–542 (1993); Arlington Heights v. Metropoli-
tan Housing Development Corp., 429 U. S. 252, 270 (1977).
There is no reason to treat the same sort of evidence so
differently here.
Perhaps the majority is worried that statements, like
——————
3 See
Koerner, Note, Between Healthy and Hartman: Probable Cause
in Retaliatory Arrest Cases, 109 Colum. L. Rev. 755, 790–794 (2009)
(identifying different varieties of evidence potentially available to prove
retaliatory motive).
Cite as: 587 U. S. ____ (2019) 9
SOTOMAYOR, J., dissenting
the mental states they evince, can be “ ‘easy to allege and
hard to disprove.’ ” Ante, at 11 (quoting Crawford-El, 523
U. S., at 585). Such concerns, whatever their merits, are
insufficient reason “to change the burden of proof for an
entire category of claims.” Id., at 594. Besides, more than
ever before, an audiovisual record of key events is now
often obtainable. Many police departments, for example,
equip their officers with body-worn cameras. 4 Smart-
phones that become video cameras with the flick of a
thumb are ubiquitous, creating still more potential records. 5
In this very case, a local news crew captured some
of the relevant events on video, and the officers were wearing
audio recorders (though neither had turned his on).
The majority appears ready to forsake this body of
probative evidence, even though it has the potential to
narrow factual disputes and avert trials.
Instead, the majority suggests that comparison-based
evidence is the sole gateway through the probable-cause
barrier that it otherwise erects. Such evidence can be
prohibitively difficult to come by in other selective-
enforcement contexts, and it may be even harder for retal-
iatory arrest plaintiffs to muster. 6 After all, while records
——————
4 See Fan, Justice Visualized: Courts and the Body Camera Revolu-
tion, 50 U. C. D. L. Rev. 897, 930–931 (2017) (noting that police de-
partments in 88 of the 100 largest cities in the United States had
“piloted or used police body cameras or ha[d] plans to do so” as of
December 2015).
5 See Simonson, Beyond Body Cameras: Defending a Robust Right To
Record the Police, 104 Geo. L. J. 1559, 1564–1565 (2016); Kreimer,
Pervasive Image Capture and the First Amendment: Memory, Dis-
course, and the Right To Record, 159 U. Pa. L. Rev. 335, 340–341, 344–
351 (2011).
6 See, e.g., McAdams, Race and Selective Prosecution: Discovering the
Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 618–623 (1998) (de-
scribing barriers to obtaining comparator evidence in selective-
prosecution cases); Poulin, Prosecutorial Discretion and Selective
Prosecution: Enforcing Protection After United States v. Armstrong, 34
Am. Crim. L. Rev. 1071, 1102–1106 (1997) (discussing examples).
10 NIEVES v. BARTLETT
SOTOMAYOR, J., dissenting
of arrests and prosecutions can be hard to obtain, it will be
harder still to identify arrests that never happened. And
unlike race, gender, or other protected characteristics,
speech is not typically sorted into statistical buckets that
are susceptible of ready categorization and comparison.
The threshold exercise prescribed today—comparing
and contrasting a plaintiff ’s protected speech and allegedly
illegal actions with the speech and behavior of others
who could have been arrested but were not—is likely to
prove vexing in most cases. I suspect that those who can
navigate this requirement predominantly will be arrestees
singled out at protests or other large public gatherings,
where a robust pool of potential comparators happens to
be within earshot, eyeshot, or camera-shot. See, e.g., Mam
v. Fullerton, 2013 WL 951401, *5 (CD Cal., Mar. 12, 2013)
(denying summary judgment to an arresting officer where
“the only difference between [the plaintiff] and those near
him [in a crowd] was the cell phone being used to record”).
While some who fit that bill undoubtedly need the protec-
tion, see, e.g., Brief for National Press Photographers
Association et al. as Amici Curiae 9–15 (collecting exam-
ples of journalists arrested during public protests or gath-
erings), it is hard to see why those plaintiffs are the only
ones deserving of a §1983 remedy.
2
Put into practice, the majority’s approach will yield
arbitrary results and shield willful misconduct from ac-
countability. As one example, suppose police respond to
reports of a man prowling a front porch. The man says
that he is a locked-out homeowner; the police want ID.
The man alleges profiling; the officers insist they are just
doing their jobs. Tempers flare. A passerby, stepping into
a next-door neighbor’s yard for a clearer view of the con-
frontation, pulls out a cell phone camera and begins
streaming video of the encounter to her social media fol-
Cite as: 587 U. S. ____ (2019) 11
SOTOMAYOR, J., dissenting
lowers. One of the officers notices and orders the passerby
to stop recording. When the passerby persists, the officer
places the passerby under arrest for trespassing.
Will this citizen journalist have an opportunity to prove
that the arrest violated her First Amendment rights?
Under the majority’s test, the answer seems to turn on
how many other curious bystanders she can identify who
were not arrested in a situation like hers. If she was one
of a crowd to enter the neighbor’s yard that night, she can
sue using her readily available comparator neighbors. But
if she was keeping a lonely vigil, she is out of luck (unless
she can find some other pool of comparable individuals).
And the video of the officer demanding she stop recording
moments before the arrest? Irrelevant, apparently. What
sense does that make?
Worse, because the majority disclaims reliance on
“statements and motivations” for its threshold inquiry,
ante, at 15, it risks licensing even clear-cut abuses. Imag-
ine that a reporter is investigating corruption in a police
unit. An officer from that unit follows the reporter until
the reporter exceeds the speed limit by five miles per hour,
then delivers a steep ticket and an explicit message: “Until
you find something else to write about, there will be many
more where this came from.” Cf. Torries v. Hebert, 111
F. Supp. 2d 806, 812 (WD La. 2000) (describing allegations
that a sheriff arrested proprietors of a local business and
“threatened to arrest them again if they continued to play
[rap] music”). If even such objectively probative evidence
is irrelevant, §1983 will provide no redress for such fla-
grant conduct. Meanwhile, the majority’s embrace of the
Devenpeck rule suggests that a particularly brazen officer
could arrest on transparently speech-based grounds and
check the statute books later for a potential justification.
See 543 U. S., at 153 (holding that probable cause need
not be for an “offense actually invoked at the time of
arrest”).
12 NIEVES v. BARTLETT
SOTOMAYOR, J., dissenting
I do not mean to overstate the clarity of today’s holding.
What exactly the Court means by “objective evidence,”
“otherwise similarly situated,” and “the same sort of pro-
tected speech” is far from clear. See ante, at 14. 7 I hope
that courts approach this new standard commonsensically.
It is hard to see what point is served by requiring a jour-
nalist arrested for jaywalking to point to specific other
jaywalkers who got a free pass, for example, if statistics or
common sense confirm that jaywalking arrests are ex-
tremely rare. Otherwise, there will be little daylight
between the comparison-based standard the Court adopts
and the absolute bar it ostensibly rejects. 8
——————
7 It is also unclear what the majority means when it says that be-
cause its threshold “inquiry is objective, the statements and motiva-
tions of the particular arresting officer are ‘irrelevant.’ ” Ante, at 15.
That could conceivably be read to mean that all statements are irrele-
vant, even objectively probative statements describing events in the
world—e.g., “I am arresting the libertarians, but not the nonlibertarian
protesters who were also trespassing.” The facts asserted therein—that
libertarians were arrested, nonlibertarians were not, and all were
similarly trespassing—are precisely the kind of objective evidence the
Court seeks. Similarly, routine police reports—on which the majority
surely must intend for plaintiffs to rely—are generally authored by,
and thus “statements of,” arresting officers. More likely, then, the
majority means only that statements describing the officer’s internal
thought processes are irrelevant (e.g., “I hate libertarians”). But many
statements will fall somewhere in between (e.g., “I’m only arresting you
because I hate libertarians”). It is hard to see how workable lines can
be drawn here.
8 That could be the unintended result if courts interpret their new
task too rigidly. Given the significant evidentiary challenges plaintiffs
may face, the best assumption is that the Court intends courts to afford
some latitude, especially at the outset of a case. That could mean
relying on common experience to assess the most self-evidently minor
infractions (such as the Court’s jaywalking example); allowing plaintiffs
to rely on rough comparisons or inexact statistical evidence where
laboratory-like controls cannot realistically be expected; and permitting
discovery into potential comparator evidence where a complaint raises
a strong inference of unconstitutional motive. For similar reasons, I
assume the Court intends courts to permit plaintiffs to draw from a
Cite as: 587 U. S. ____ (2019) 13
SOTOMAYOR, J., dissenting
C
JUSTICE GORSUCH, alert to the illogic of the majority’s
position, instead contemplates borrowing a requirement to
adduce “clear evidence” of prohibited purpose from our
cases concerning equal-protection-based selective-
prosecution claims. See ante, at 7–8 (citing United States
v. Armstrong, 517 U. S. 456 (1996)). 9 This suggestion,
though perhaps an improvement over the majority’s ap-
proach, would nevertheless take a doctrine applying (1)
equal protection principles (2) in a criminal proceeding to
(3) charging decisions by prosecutors, see id., at 458–459,
464–465, and ask it also to govern the application of (1)
First Amendment principles (2) in a suit for civil damages
challenging (3) arrests by police officers. JUSTICE
GORSUCH commendably reserves judgment on a proposal
not yet subjected to adversarial testing, so I too refrain
from speaking too definitively. But I do note that we
rejected a very similar rule in Crawford-El. See 523 U. S.,
at 594 (rejecting a “clear and convincing” standard for
“constitutional claims that require proof of improper in-
tent”). And whatever the merits of the Armstrong rule as
currently applied in other contexts, there are good rea-
sons—unexplored by the parties here—to hesitate before
extending it. 10
——————
broad universe of potential comparators. And because the test is
“objective,” ante, at 15, plaintiffs presumably can look beyond the
practices of the specific officer or officers who arrested them, to see how
other officers handle comparable infractions.
9 To whatever extent the Court’s opinion also seeks kinship with
Armstrong, see ante, at 14, I note that Armstrong expressly reserved
the question whether comparator evidence alone can provide sufficient-
ly clear evidence of discrimination or whether “ ‘direct admissions . . . of
discriminatory purpose’ ” might also suffice. 517 U. S., at 469, n. 3.
The Court should have followed that example here.
10 For example, JUSTICE GORSUCH suggests that a potential Arm-
strong-like rule might be supported by a concern for “separation of
powers and federalism.” Ante, at 7. While those values are undoubtedly
14 NIEVES v. BARTLETT
SOTOMAYOR, J., dissenting
III
For the foregoing reasons, I agree with JUSTICE
GINSBURG that the tried-and-true Mt. Healthy approach
remains the correct one. And because petitioners have not
asked us to revisit the Court of Appeals’ application of the
governing standard, I would affirm.
* * *
The power to constrain a person’s liberty is delegated to
law enforcement officers by the public in a sacred trust.
The First Amendment stands as a bulwark of that trust,
erected by people who knew from personal experience the
dangers of abuse that follow from investing anyone with
such awesome power. Cf. Whitney v. California, 274 U. S.
357, 375–376 (1927) (Brandeis, J., concurring). Because
the majority shortchanges that hard-earned wisdom in the
name of marginal convenience, I respectfully dissent.
——————
important, they have no apparent interpretive role to play here.
Section 1983 exercises Congress’ Fourteenth Amendment power to
enforce the Constitution against those who wield state authority,
“whether they act in accordance with their authority or misuse it.”
Monroe v. Pape, 365 U. S. 167, 172 (1961). It is an emphatic “extension
of federal power” into state affairs, id., at 182, one that by its plain
terms covers all traditional state prerogatives—including the power to
arrest—when wielded to violate federal constitutional rights. Abuses of
the arrest power thus are unquestionably among the unconstitutional
acts “under color of” state law against which §1983 operates. See id., at
184; see also id., at 174, and n. 10.