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!