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Tuesday, May 28, 2019

We have Nieves (finally)--now what?

After six months, the Court finally decided Nieves v. Bartlett. My SCOTUSBlog analysis is here.

I am guessing the long delay owed to five opinions flying around with different combinations of ideas. Eight Justices agreed that the plaintiffs should lose here on summary; only Sotomayor would affirm, because the defendants did not challenge the way the Ninth Circuit applied the standard. Eight Justices agreed that that the presence of probable cause does not automatically defeat all retaliatory-arrest claims; only Justice Thomas made that argument. Two Justices (Ginsburg and Sotomayor) argued that the Mt. Healthy burden-shifting framework should apply; two Justices (Sotomayor and Gorsuch) argued that any direct evidence of improper motive, not only comparison of similarly situated persons, should be sufficient to show improper motive. A five-Justice majority (the Chief for Breyer, Alito, Kagan, and Kavanaugh) said probable cause is required unless the plaintiff can show objective evidence that he was arrested when similarly situated persons who did not engage in his speech were not. Both Sotomayor and Gorsuch feared this standard was insufficiently protective of First Amendment interests--Sotomayor's solution was to challenge the standard as wrong, while Gorsuch's was to work the lower-court refs and convince them that the majority's approach is broader than its language would suggest.

I am surprised by two things, First, Ginsburg was not able to cobble together a majority with Breyer, Sotomayor, Kagan, and Gorsuch, given the concerns that Kagan raised during argument. Second, no one emphasized proposed limitations as between serious and petty crimes or as between probable cause for the immediate charge at the time of arrest or probable cause based on a months-long scouring of the statute book.

Also, note the way Sotomayor's dissent engages with recent scholarship exposing the reality of police/public interactions and the litigation that results. This includes noting that any defendant police officers likely were indemnified and that most encounters are recorded by both police and members of the public, producing more evidence to prove (or disprove) improper motive.

Posted by Howard Wasserman on May 28, 2019 at 10:09 PM in First Amendment, Howard Wasserman | Permalink


One again, though not always, I find myself in agreement with Asher. I only quibble about one thing. I don't agree that Breyer is a pragmatist regardless whether that is meant in the legal or philosophical sense. Breyer is most sincerely a moral particularist.


Although there is overlap between moral particularism and pragmatism Breyer's internationalism is an example of an attitude that most pragmatists would reject but a moral particularist accept.

Posted by: James | Jun 2, 2019 4:17:33 PM

Interesting, just worth to pay bit more attention, to the dissenting opinion of justice Sotomayor, I quote:

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.

End of quotation:

So, not only new technology like body cams and so forth...But,the idea that complexity of litigation may bar a claimant from being recovered, is inappropriate and unjust. One may find or present objective evidences, notwithstanding that standard of : probable cause, and similarly situated arrests so far. It can't bar the court from such inquiry. Not to forget:

Even when police officer, is acting with good faith, manifestly so, he may be found liable, simply due violation of the standard of " clearly established right " violated. Just because, being in stress in light of rapidly evolving situation, he didn't analyze or implied clearly or rightly precedents of courts. The latter, is a burden, far greater more harming over such retaliatory free speech arrests.


Posted by: El roam | May 29, 2019 12:13:27 PM

"I am surprised by two things, First, Ginsburg was not able to cobble together a majority with Breyer, Sotomayor, Kagan, and Gorsuch, given the concerns that Kagan raised during argument."

I don't know what Kagan's doing (trading her vote for a watered-down rule, perhaps). But rereading Breyer's questions at argument, I think he's genuinely in sympathy with the majority opinion and genuinely opposed, on Breyerian pragmatic grounds, to doing Mount Healthy here. Even if you suppose Roberts's opinion was always more moderate than Thomas wanted, Kagan's switching alone would merely create a 4-1-4 where Roberts's narrower opinion would control on any non-confused understanding of Marks, so it's understandable that she joins in exchange for some input on what the opinion will say. It can't be that they're both being insincere; even if they refused to accept Ginsburg's rule, they could have adopted Gorsuch's, whatever that is, and made his opinion the Marks rule of the case. At least one of them, though perhaps only one of them, must not prefer that outcome to this.

Posted by: Asher | May 29, 2019 9:00:26 AM

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