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Thursday, June 28, 2018

(SCOTUS Term) Trying again with First Amendment retaliation

I wrote last week that the narrow and fact-specific decision in Lozman v. Riviera Beach reflected a vehicle failure--the Court wanted to consider the effect of probable cause on First Amendment retaliation claim, but took a case in which retaliatory intent rested with members of the city council, not the arresting officer. The Court on Thursday granted cert in Nieves v. Bartlett, a decision out of the Ninth Circuit (the court most willing to allow plaintiffs to show retaliatory intent even if there was probable cause) that squarely tees-up the issue without possible intervening factual issues.

Posted by Howard Wasserman on June 28, 2018 at 01:17 PM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink



Assuming all you said is accurate it is hard to see any ruling that is not pro law enforcement. The facts in Bartlett are very very officer friendly...so friendly that even I have a problem with the idea that this was retaliatory arrest...it is not even superficially plausible.

So Lozman looks to me like a "one and done" in this area. Yes, the court will say, it is not wholly inconceivable for a person to make a claim of retaliation even when there is probable cause but that will be the remote outlier. 99.999% of the time toss retaliation claims.

Posted by: James | Jun 28, 2018 2:33:12 PM

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