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Nieves vs Bartlett Fri 28 May 19

Arctic Man and claim of retaliation for free speech

District Court found probably cause for arrest

Ninth Circuit reversed speech as a but-for-cause injury

Held: probable cause

Problem of causation must prove a threshold of a lack of probable cause

Reject subjective intent

Ashcroft vs al-Khalid Hartman vs Moore 2006

Objective inquiry --- absence of probable cause as a probative force

Tort law

Roberts + Breyer, Alito, Kagan, & Kavanaugh + Thomas

Hartman so required absence – no mind reading

Heck vs Humphrey analogous to retaliatory arrest claims

Definition: false imprisonment – detention without legal process

Malicious prosecution – wrongful institution of legal process

Thomas dissent toward circumstances of probable cause, but not ythe typically discretion of not arresting for a minor offense

Gorsuch statutory does not have a requirement of absence of probable cause

Legislative responsibility

Fourth requires probable cause

First requires freedom of speech

Yick Wo vs Hopkins 1886 on a Chinese laundry

Probable cause as a relevant factor of causation

Hartman prosecution lacked probable cause bridged the gap between motives and action

The precedent may serve as a role of the separation of powers

Armstrong 1996 racism – plaintiff must show “clear evidence” of discrimination

The admission was adequate

The absence of probable cause is not an absolute requirement of such a claim and its presence is not an absolute defense. – deferred and left more confusion on this case – no test!

Ginsburg retaliation was absent in this case – the simple answer to decide this case

Sotomayor, dissent

Plaintiff establishes constitutionality of a protected conduct was a substantial or motivating factor in the action

Threshold – defendant proves the same decision regardless of the act, criticized the standard of probable cause:

“A police officer who makes a legitimate arrest might have to explain that arrest to a jury is insufficient to curtail the First.”

Hybridizes two constitutional protections.

Only motive evidence : the treatment of comparitors

Agree – the two rights should stand alone by themselves!

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supremecourt1967.jpg

My favorite Supreme Court from 1967, going the same way as above:
Chief Justice Earl Warren in center
Hugo Black to his right. (1937)
William O Douglas to his left (1939)
John Marshall Harlan right of Black (1955)
Willaim Brennan left of Douglas (1956)
Potter Stewart (1958)
Byron White (1962)
Abe Fortas (1965)
Thurgood Marshall (1967)
Although I'd prefer Arthur Goldberg instead of Fortas.