3 7 12 Notice Appeal Summary Contempt Order, MTN Return Personalty Confiscated by RMC, New Trial, Alter, Amend Summary Contempt Order Stamped Full

To: 1699ac9c-69bl-4598-88f6-3DddJ6e From: zachcoughltn 3-07-12 1:58pm p.
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Document Code:
Zach Coughlin
Nevada BarNo: 9473
1422 E. 91b St. #2
Reno, NV 89512
Tele: 775-338-8118
Fax: 949667-7402
fILED
RENe MUNICIPAL
26UHAR -7 PH 2: 15
Attorney for Pro Se Attorney Plaintiff Denied Sixth Amendment Right to Counsel
IN THE RENO MUNICIPAL COURT OF THE ST ATE OF NEVADA
IN AND FOR THE COUNTY OF WASHOE
ITY OF RENO; )
)
)
PLAINTIFF. )
Case No: 11 TR 26800
vs. )
)
Dept No: 3
ACH )
)
)
DEFENDANT. )
)
NOTICE OF APPEAL OF SUMMARY CONTEMPT ORDER: MOTION TO RETURN
PERSONAL PROPERTY CONFISCATED BY RENO MUNICIPAL COURT AND ITS
MARSHALS; MOTION FOR NEW TRIAL AND TO ALTER OR AMEND SUMMARY
CONTEMPT ORDER
COMES NOW, Defendant, Zach Coughlin, by and through himself and files the above title
document on his own behalf.
The undersigned means to show nothing but respect for this Court. especially considering
Your Honor holds the honor of being one of the flTSt 100 women ever admitted to practice law in our
state, 75th. See Exhibit 1. Like Your Honor, my father has a background in football (he played
fullback for Tulane from 1964-1968, on scholarship from Dayton, Ohio). One thing that we don't see
in football too much is a team hiring a lifetime offensive coordinator to be the team's defensive
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NOTICE OF APPEAL OF SUMMARY CONTEMPT ORDER; MOTION TO RETURN PERSONAL PROPERTY CONFISCATED
BY RENO MUNICIPAL COURT AND ITS MOTION FOR NEW TRIAL AND TO ALTER OR AMEND
SUMMARY CONTEMPT ORDER
00171
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coordinator. 7ou Bu0t donAt ever 0ee that. 7et" =e have Budge0 =ho have 0>ent much o. their careerA0
a0 >ro0ecutor0 ta?ing the <ench. 5n0u>ri0ingl-" a0 here" the re0ult can o.ten -ield 0ituation0 =here it
a>>ear0 the Budge i0 0till =or?ing a0 a >ro0ecutor. &hi0 i0" to <e clear" not meant to im>l- an
ina>>ro>riate <ia0 or intent. 2o=ever" one 0im>l- doe0nAt >la- tenni0 right handed their =hole li.e
then move the rac?et to the other hand and immediatel- have Cuite the 0ame de)terit-. 2ere"
e..ectivel-" De>ut- Cit- ,ttorne- 3rma0 <ecame the 0econd chair on thi0 ca0e. No=" 0hortl- a.ter 1
have <een adBudge a victim o. dome0tic violence and granted t=o di..erent 3rder0 .or /rotection <-
4a0ter Edmund0on @thi0 Court re.u0ed to hear an-thing a<out thi0 in 0ummaril- den-ing m-
e)cu0a<le neglect argument0 vi0 a vi0 the deadline0 .or >re'trial motion0...-et 3rma0 and Sargent
&arter are allo=ed to call time out right <e.ore the &rial and com>are their >o0ition0 or Dcon.erDE;.
No=" a0ide .rom having m- alread- 0?int <an? account >racticall- em>tied >a-ign a F3++ to=ing <ill
.or m- car incurred during thi0 0ummar- incarceration" and having 0everal clientA0 ca0e0 <adl-
damaged @=h- thi0 >uni0hment could not have <een dela-ed even a da- i0 not clear to me" rather" it i0
di0tur<ing...and the e)cu0e the lac? o. concern .or the0e client0 <- 0hi.ting <lame to the under0igned
.or Gealou0l- advocating on <ehal. o. the accu0ed mi00e0 the >oint and .urther engage0 in a DGero 0um
gameD mind0et that !eno and it0 citiGen0 do not need right no=;. 1n hi0 o=n te0timon- Sargent
&arter admitted to a retaliator- motive .or the citation here. (urther he o>ened the door to 0everal
matter0 thi0 Court clearl- did not =ant to have 0ee the light o. da-. &he0e include" the .act that
Sargent &arter told the accu0ed he ?ne= he =a0 going to turn le.t on (orre0t St. and head <ac?
to=ard0 2illA0 la= o..ice" and that i0 =h- he >ulled the accu0ed over" in addition to the .act that the
accu0ed" allegedl- Ddid not come to a com>lete 0to> in front o. the =hite line" <ut onl- a.ter the
=hite lineD. &hi0 DinchingD into the inter0ection =a0 nece00ar- to gain a vie= o. =hether an- car0
mgith <e coming even car0 going the =rong =a- do=n a one =a- 0treet li?e (orre0t @drun? or craG-
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NOTICE OF APPEAL OF !""AR# CONTE"PT ORDER$ "OTION TO RET!RN PERONAL PROPERT# CONFICATED
%# RENO "!NICIPAL CO!RT AND IT "AR&AL$ "OTION FOR NE' TRIAL AND TO ALTER OR A"END
!""AR# CONTE"PT ORDER
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driver0 do not cea0e to e)i0t" a0 Sargent &arter im>lied" merel- <ecau0e a 0treet i0 de0ignated a0 a
Done =a-D. 1t0 ironic" <eca0ue the accu0ed and Sargent &arter argued a<out =hether the rationale
Sargent &arter >ro.erred .or >ulling the accu0ed over made an- 0en0e" a0" according to the accu0ed"
turning le.t on (orre0t to get <ac? to 2illA0 o..ice= at *%2 (orre0t St =hile the accu0ed =a0 heading
ea0t on St. 6aurence =ould have reCuired goign do=n the D=rong =a-D o. a Done =a- 0treet"
(orre0tD...it =a0 at a<out that time that Sargent &arter decided he could hear no more .rom the
accu0ed. !egardle00" &arter =a0 tailing the accu0ed" the accu0ed =a0 a=are o. it" and the accu0ed
care.ull- o<e-ed all la= o. tra..ic a0 he 0u0>ected &arter =ould tr- to =rite 0ome >hon- tra..ic tic?et.
&hi0 clearl- contradict0 &arter0 a00ertion that he =a0 >ar?ed and not tailing the accu0ed" nor had he
<egun to" until a.ter =itne00ing the alleged D.ailure to come to a com>lete 0to>D violation" =hich
included &arterA0 highl- 0u0>ect te0timon- =hich 0eemed to de.- the la=0 o. >h-0ic0 and o>tic0" in
addition to other la=0.
De.endant .ile0 thi0 @onl- to the e)tent it i0 even nece00ar- and 0ome alternate re0olution
cannot <e had...<arring that" >lea0e treat thi0 a0 a Notice o. ,>>eal a0 =ell" though treating thi0 a0 a
Dtolling motionD" N!C/ %2" N!C/ %9@a;"@e;" etc. ma- al0o <e a nice a>>roach >reventing the .a0t
>ace a>>eal0 >roceed at an or o<viating the need .or me to .ile 0uch a Notice o. ,>>eal; a0 he =a0
denied hi0 Si)th ,mendment !ight &o Coun0el @ @ thi0 Si)th ,mendment !ight to Coun0el i0
mentioned clearl- in the 2++$ 6imited Huri0diction CourtA0 Bench Boo? .or Nevada Hudge0" along
=ith the 2+1+ Su>>lement thereto" and =hile a ver- learned Hudge li?e Hudge 2o=ard ma- cite to
Scott v. 1llinoi0 .or 0u>>ort that no 0uch right e)i0t0 =here incarceration i0 not actuall- e..ectuated" it
clearl- =a0 here" .ive da-0 =orth" com>lete =ith a F3++ <ill .or the under0ignedA0 car <eing to=ed;"
and .ile0 thi0 4otion &o Set ,0ide Hudge Na0h 2olme0 (e<ruar- 27th" 2+12 Summar- Contem>t
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3rder and al0o to move .or a continuance =ith re0>ect to the ne)t &rial date that =a0 mentioned =hile
the under0igned =a0 in cu0tod-. See E)hi<it 1.
LEGAL ARGUMENT
,>>ellant argue0 that <- den-ing hi0 reCue0t to cro00'e)amine =itne00e0 a<out their >otential
<ia0" the trial court a<ridged hi0 Si)th ,mendment right to con.ront the =itne00e0 again0t him. Bia0
e)i0t0 I=hen a =itne00 ha0 a general =illingne00 or motivation to te0ti.- .al0el- on the 0tand.J !o0e v.
5nited State0" $79 ,.2d 9$*" 99% @D.C.2++%;. IBia0 cro00'e)amination o. a main government =itne00
i0 al=a-0 a >ro>er area o. cro00'e)amination and i0 relevant in a00e00ing the =itne00A credi<ilit- and
evaluating the =eight o. the evidence.J Blunt v. 5nited State0" $*3 ,.2d $2$" $33 @D.C.2++4;9
accord" Scull v. 5nited State0" %*4 ,.2d 11*1" 11*% @D.C.19$9; @IBia0 i0 al=a-0 a >ro>er 0u<Bect o.
cro00'e)amination . and the alleged <ia0 or unrelia<ilit- o. a =itne00 i0 never a collateral i00ueJ
@citation0 omitted;;. 3n the other hand" although the Io>>ortunit- to cro00'e)amine adver0e =itne00e0
i0 an inherent com>onent o. the de.endantA0 Si)th ,mendment right o. con.rontation . that right i0
0u<Bect to rea0ona<le limit0 im>o0ed at the di0cretion o. the trial Budge . to >revent hara00ment"
>reBudice" con.u0ion o. the i00ue0" or re>etitive" cumulative" or onl- marginall- relevant Cue0tioning.J
1d. at 11*4 @citation0 omitted;. , I>ro>er .oundationJ i0 reCuired .or cro00'e)amination to e0ta<li0h
<ia0" including a >ro..er o. .act0 0u..icient to ena<le the court Ito evaluate =hether the >ro>o0ed
Cue0tion i0 >ro<ative o. <ia0.J Hone0 v. 5nited State0" %1* ,.2d %13" %17 @D.C.19$*;. &he >ro..er
mu0t include I K0ome .act0 =hich 0u>>ort a genuine <elie.L that the =itne00 i0 <ia0ed in the manner
a00erted"J id. @citation omitted;" or at lea0t Ia K=ell'rea0oned 0u0>icionL rather than Kan im>ro<a<le
.light o. .anc-L to 0u>>ort the >ro>o0ed cro00'e)amination.J Scull" %*4 ,.2d at 11*4 @Cuoting 5nited
State0 v. /ugh" 141 5.S.,>>. D.C. *$" 71" 43* (.2d 222" 22% @197+;;. &hi0 0tandard i0 a .airl- lenient
one" and an- deci0ion a<out the adeCuac- o. the >ro..er lie0 =ithin the 0ound di0cretion o. the trial
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court. Bro=n v. 5nited State0" *$3 ,.2d 11$" 124'12% @D.C.199*;. (inall-" =hen challenging an
adver0e ruling on a >ro..er o. =itne00 <ia0" an a>>ellant mu0t 0ho= Ithat he =a0 >rohi<ited .rom
engaging in other=i0e a>>ro>riate cro00'e)amination de0igned to 0ho= a >rotot->ical .orm o. <ia0 on
the >art o. the =itne00" and there<- Kto e)>o0e to the Bur- the .act0 .rom =hich Buror0 . could
a>>ro>riatel- dra= in.erence0 relating to the relia<ilit- o. the =itne00.L J Dela=are v. #an ,r0dall"
47% 5.S. *73" *$+" 1+* S.Ct. 1431" $9 6.Ed.2d *74 @19$*; @citation omitted;. ,>>ellant argue0 that
he =a0 not a<le to >re0ent to the Bur- hi0 theor- o. de.en0e" =hich =a0 that the >olice >lanted the
evidence allegedl- .ound on or near him in retaliation .or hi0 >ending civil 0uit" <ecau0e the trial
court limited hi0 a<ilit- to cro00'e)amine the governmentA0 =itne00e0. Be.ore the trial <egan" de.en0e
coun0el >ro..ered to the court evidence a<out =hich he =i0hed to cro00'e)amine 0ome o. the
government =itne00e0 regarding <ia0. Coun0el e)>lained to the court" a.ter the >ro0ecutor o<Bected"
that in an earlier incident 3..icer0 4a0on and Branch" =ho =ere al0o >art o. the 0earch =arrant team"
came to a>>ellantA0 home and <ro?e hi0 arm" and that a0 a re0ult a>>ellant .iled 0uit.4 De.en0e coun0el
0tated: MBNa0ed on all o. tho0e .actor0" =hether or not the- 0a- the- ?ne= the o..icer0 or not" =hether
or not the- tal?ed MtoN the o..icer0 or not" it 0eem0 to u0 that a <ia0 i00ue e)i0t0" and the Court 0hould
>ermit thi0 and let the Bur- decide. M&Nhe Bur- can 0ort out =hether or not thi0 in.ormation 0omeho=
got to >eo>le =ho =ere >art o. the arre0t MteamN" and arre0ted the de.endant. % &he court ruled: 1n thi0
ca0e there i0 no relevance at all <ecau0e the o..icer0 that are te0ti.-ing'each one o. them no= ha0 told
u0 that the- had no idea a<out the >rior incident" the notice or the la=0uit" on the da- o. the arre0t o.
4r. 2o=ard in thi0 ca0e. &o allo= te0timon- a<out that 0e>arate incident that the0e o..icer0 didnAt
even ?no= a<out =ould <e con.u0ing" mi0leading" and >reBudicial" and 1Am not going to allo= it.* 1t
a>>ear0 to u0 that the court mi0ta?enl- a>>lied a >re'trial credi<ilit- .inding" on =hich it had relied to
decide the i00ue o. >ro<a<le cau0e" to the 0e>arate determination o. the trial'related i00ue o. =hether
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the de.endant had >ro..ered 0u..icient .act0 to =arrant cro00'e)amination on >otential <ia0. ,t the
0u>>re00ion hearing" the court had concluded that 3..icer !andol>h" =ho >re>ared the 0earch =arrant
a>>lication" did not ?no= o. the >ending civil 0uit and had not <een directed <- 3..icer Branch or
3..icer 4a0on to get a 0earch =arrant .or a>>ellantA0 home" 0o the =arrant =a0 valid. &hi0 .inding"
ho=ever" did not .oreclo0e the de.en0e trial theor- that the o..icer0 at the 0cene =ere <ia0ed <ecau0e
o. the la=0uit or ma- have <een im>ro>erl- in.luenced <- 3..icer Branch @=ho =a0 in the room
=hen the drug0 =ere .ound on a>>ellant; or 3..icer 4a0on @=ho =a0 >art o. the 0earch team;" and
intentionall- im>licated a>>ellant even though @according to the de.en0e; no drug0 =ere actuall-
.ound on hi0 >er0on. C.. Sullivan v. 5nited State0" 4+4 ,.2d 1%3" 1*+ @D.C.1979; @IMgNreat latitude i0
a>>ro>riatel- e)tended to a 0ho=ing o. a com>laining =itne00A <ia0 <- mean0 o. cro00'e)amination
concerning that =itne00A >ending la=0uit ver0u0 the de.endant again0t =hom he ha0 te0ti.iedJ <ecau0e
the la=0uit i0 Irelevant to a 0ho=ing o. . hi0 ill'=ill to=ard the de.endantJ @citation0 omitted;;.
,lthough the trial court .ound" at the 0u>>re00ion hearing" that 3..icer !andol>h =a0 credi<le and did
not ?no= o. the la=0uit at the time he o<tained the 0earch =arrant or the at the time o. it0 e)ecution"
and thu0 concluded that the =arrant =a0 valid" it =a0 not u> to the court to determine the credi<ilit-
o. =itne00e0 at trial regarding their >otential <ia0. See Ne=man v. 5nited State0" 7+% ,.2d 24*" 2%9
@D.C.1997; @I1n evaluating the relia<ilit- o. the >ro..er . the court mu0t not 0ee? to evaluate the
relia<ilit- o. the =itne00J;. De0>ite the courtA0 a00e00ment o. the o..icer0A credi<ilit- in ruling on the
validit- o. the =arrant at the 0u>>re00ion hearing" it =a0 error to rel- on that credi<ilit- determination
to >reclude <ia0 cro00'e)amination at trial <ecau0e IMcNonditioning <ia0 cro00'e)amination on the
courtA0 a<ilit- to a00e00 the credi<ilit- o. the 0ource o. the alleged motive run0 too clo0e to u0ur>ing
the Bur-A0 .unction.J Bro=n v. 5nited State0" 74+ ,.2d %33" %37 @D.C.1999;. ,t trial" de.en0e coun0el
0ought to cro00'e)amine 0ome o. the >olice =itne00e0 a<out their ?no=ledge o. the civil 0uit again0t
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the >olice de>artment and to a0? them =hether that ?no=ledge in.luenced the e)ecution o. the 0earch
=arrant. Coun0el >ro..ered .act0 =hich 0ugge0ted that the =itne00e0 might <e <ia0ed in the manner
a00erted: that 3..icer0 Branch and 4a0on had >reviou0l- <een involved in an incident in =hich
a>>ellantA0 arm =a0 <ro?en" that the 0ame o..icer0 @.rom the Si)th Di0trict; =ere >re0ent at the
e)ecution o. the 0earch =arrant =hich re0ulted in a>>ellantA0 arre0t" and that a>>ellant had .iled a civil
0uit again0t the >olice de>artment" a0 =ell a0 3..icer0 Branch and 4a0on. &he0e .act0 0u>>orted at
lea0t Ia =ell'rea0oned 0u0>icionJ that the o..icer0 involved in the e)ecution o. the 0earch =arrant" all
.rom the Si)th Di0trict" ma- have had a motive to te0ti.- .al0el-" or at lea0t to 0tretch the truth"
regarding the 0eiGure o. drug0 .rom a>>ellant. Since Sergeant :aine-" 3..icer !andol>h" and 3..icer
Brac?ett =ere all >re0ent =hen 0ome or all o. tho0e drug0 =ere recovered" the court 0hould have
allo=ed coun0el to cro00'e)amine the government =itne00e0 <e.ore the Bur- to e)>lore =hat the-
?ne= a<out the la=0uit and =hether the- =ere" during the 0earch" in.luenced in an- =a- in.luenced
<- that ?no=ledge. 3nce coun0el made hi0 >ro..er" the credi<ilit- o. the =itne00e0 =a0 .or the Bur- to
decide" and cro00'e)amination a<out the la=0uit =a0 a>>ro>riate. ,0 the Su>reme Court ha0 0aid: 8e
cannot 0>eculate a0 to =hether the Bur-" a0 0ole Budge o. the credi<ilit- o. a =itne00" =ould have
acce>ted thi0 line o. rea0oning had coun0el <een >ermitted to .ull- >re0ent it. But =e do conclude that
the Buror0 =ere entitled to have the <ene.it o. the de.en0e theor- <e.ore them 0o that the- could ma?e
an in.ormed Budgment a0 to the =eight to >lace on Mthe =itne00AN te0timon- =hich >rovided Ia crucial
lin? in the >roo. . o. >etitionerA0 act.J Davi0 v. ,la0?a" 41% 5.S. 3+$" 317" 94 S.Ct. 11+%" 39 6.Ed.2d
347 @1974; @citation omitted;. &he trial courtA0 concern in thi0 ca0e a<out >o00i<le Bur- con.u0ion =a0
mi0>laced <ecau0e IMaNn- >otentialit- o. con.u0ion to the Bur- ma- <e eliminated <- >ro>er
in0truction0.J Scull" %*4 ,.2d at 11*% @.ootnote omitted;. ,>>ellant ha0 I0tateMdN a violation o. the
Con.rontation Clau0e <- 0ho=ing that he =a0 >rohi<ited .rom engaging in other=i0e a>>ro>riate
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cro00'e)amination de0igned to 0ho= a >rotot->ical .orm o. <ia0 on the >art o. the =itne00Me0N" and
there<- Kto e)>o0e to the Bur- the .act0 .rom =ich Buror0 . could a>>ro>riatel- dra= in.erence0 relating
to the relia<ilit- o. the =itne00 Me0N.L J #an ,r0dall" 47% 5.S. at *$+" 1+* S.Ct. 1431. &he trial court
erred <- con.u0ing the 0earch =arrant determination =ith the adeCuac- o. the <ia0 >ro..er in0tead o.
con0idering the >ro..er 0e>aratel-" and thu0 im>ro>erl- >recluded relevant cro00'e)amination a0 to
<ia0. Becau0e the trial courtA0 ruling >revented a>>ellant .rom >re0enting hi0 main de.en0e theor-" =e
cannot .ind harmle00 error under Cha>man v. Cali.ornia" 3$* 5.S. 1$" 24" $7 S.Ct. $24" 17 6.Ed.2d
7+% @19*7;. See #an ,r0dall" 47% 5.S. at *$4" 1+* S.Ct. 1431 @the denial o. a de.endantA0 o>>ortunit-
to im>each a =itne00 .or <ia0 i0 0u<Bect to Cha>man harmle00 error anal-0i0;. &he .act that the
de.en0e =a0 allo=ed to >re0ent te0timon- <- 6e0ter 2o=ard that he did not 0ee an- drug0 recovered
.rom a>>ellant and that he and a>>ellant =ere a<u0ed <- the >olice doe0 not alleviate the harm o.
>rohi<iting the relevant and di0tinct <ia0 te0timon- a<out the =itne00e0A ?no=ledge o. the la=0uit. 8e
reached a 0imilar conclu0ion in Scull" in =hich =e held that it =a0 not harmle00 error .or the trial
court to >reclude the cro00'e)amination o. =itne00e0 a0 to relevant <ia0 @.ear o. their o=n
>ro0ecution; even though it allo=ed other cro00'e)amination o. the 0ame =itne00e0 a0 to <ia0
0temming .rom a di..erent motivation. ISince the i00ue o. thi0 >ro>o0ed cro00'e)amination =a0
entirel- di0tinct .rom that allo=ed <- the trial court" central to the Bur-A0 evaluation o. the credi<ilit-
o. ?e- =itne00e0" and admi00i<le" it0 e)clu0ion =a0 con0titutional error.J %*4 ,.2d at 11**. See al0o
Davi0" 41% 5.S. at 31$" 94 S.Ct. 11+% @I8hile coun0el =a0 >ermitted to a0? Mthe =itne00N =hether he
=a0 <ia0ed" coun0el =a0 una<le to ma?e a record .rom =hich to argue =h- Mthe =itne00N might have
<een <ia0ed or other=i0e lac?ed that degree o. im>artialit- e)>ected o. a =itne00 at trialJ;. &here.ore"
the error cannot <e deemed harmle00 <e-ond a rea0ona<le dou<t. 111 ,>>ellant al0o argue0 that the
trial court 0hould not have >ermitted Sergeant :aine- to te0ti.- a<out the re0ult0 o. the internal >olice
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inve0tigation a<out the u0e o. .orce again0t 6e0ter 2o=ard. 2e maintain0 that the admi00ion o. thi0
te0timon- denied him a .air trial <ecau0e he could not cro00'e)amine the =itne00e0 at the >olice
de>artment hearing.7 3n thi0 >oint =e .ind no error. 8hile cro00'e)amining Sergeant :aine-"
de.en0e coun0el elicited the .act that the >olice de>artment had conducted an internal inve0tigation o.
the earlier incident9 the government re0>onded on redirect <- clari.-ing that the u0e o. .orce =a0
ultimatel- .ound to have <een Bu0ti.ied. Such remedial e..ort0 are allo=ed under the doctrine o.
curative admi00i<ilit-. See :oine0 v. 5nited State0" 9+% ,.2d 79%" $++ @D.C.2++*;. &hat doctrine
I>rovide0 that in certain circum0tance0 the >ro0ecution ma- inCuire into evidence other=i0e
inadmi00i<le" <ut onl- a.ter the de.en0e ha0 Ko>ened the doorL =ith regard to thi0 evidence.J 4ercer
v. 5nited State0" 724 ,.2d 117*" 1192 @D.C.1999;. &he doctrine i0 limited" ho=ever" and >ermit0
remedial evidence Ionl- to the e)tent nece00ar- to remove an- un.air >reBudice =hich might
other=i0e have en0ued .rom the original evidence.J 1d. @citation omitted;. Becau0e de.en0e coun0el
o>ened the door to evidence a<out the internal >olice inve0tigation" it =a0 not an a<u0e o. di0cretion
.or the trial court to allo= the government to a0? .urther Cue0tion0 on redirect. &hrough it0
Cue0tioning" the government re.uted the im>lication that Sergeant :aine- might <e <ia0ed <ecau0e o.
the inve0tigation. :aine-A0 te0timon- on redirect =a0 limited to clari.-ing that the >olice de>artment
routinel- conducted 0uch inve0tigation0 =hen .orce =a0 u0ed <- it0 o..icer0" that he =a0 not .ear.ul o.
<eing im>licated in an- =rongdoing" and that the inve0tigation concluded that the u0e o. .orce in thi0
in0tance =a0 Bu0ti.ied. 8hen the government elicit0 te0timon- on a 0u<Bect during redirect
e)amination that the de.en0e <rought u> during cro00'e)amination" the de.endant Icannot =ell
com>lain o. <eing >reBudiced <- a 0ituation =hich MheN created"J 6ane- v. 5nited State0" %4 ,>>.
D.C. %*" *+" 294 (. 412" 41* @1923;" <ecau0e Ithe error that occurred" i. an-" =a0 invited <- de.en0e
coun0el.J :onGaleG v. 5nited State0" *97 ,.2d $19" $2* @D.C.1997;9 0ee /ar?er v. 5nited State0" 7%7
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,.2d 12$+" 12$*'12$7 @D.C.2+++; @citing :onGaleG and 6ane- ;. Becau0e de.en0e coun0el elicited
te0timon- on the 0u<Bect in the .ir0t in0tance during hi0 cro00'e)amination o. Sergeant :aine-" the
government =a0 entitled on redirect to di0>el an- >otential >reBudice and to re.ute" i. it could" an-
im>lication o. <ia0.J 238,!D" v. 5N1&ED S&,&ES" ,>>ellee. No. +$'C('173. ,rgued 4a- *"
2++9. '' ,ugu0t 27" 2++9
Court .ind0 >olice chie. and o..icer0 inve0tigated man .or retaliator- rea0on09 damage0 a=arded" ho=ever" =ere
e)ce00ive !a?ovich v. 8ade" $19 (.2d 1393 @7th Cir. 19$7;.
(ederal a>>eal0 court rever0e0 deci0ion holding >olice chie. and o..icer0 lia<le .or alleged retaliator- inve0tigation
!a?ovich v. 8ade" $%+ (.2d 11$+ @7th Cir. 19$$;.
/rocedural: Evidence
&rial BudgeA0 re.u0al to allo= a >lainti.. in an e)ce00ive .orce la=0uit to cro00 e)amine the
de.endant o..icer regarding hi0 >rior di0ci>line and conduct" =hich allegedl- =ould have 0ho=n that
he =a0 ha<ituall- di0hone0t in hi0 Bo<" re0ulting in hi0 re0ignation" =a0 an a<u0e o. di0cretion"
reCuiring a ne= trial on claim0 again0t the o..icer. &he e)ce00ive .orce claim again0t him revolved
around an i00ue o. hi0 credi<ilit-" 0o that <arring thi0 evidence =a0 not harmle00. ,0 .or claim0
again0t the cit-" alleged negligent monitoring o. an o..icer cannot <e the <a0i0 o. a .ederal civil right0
claim" and the >lainti.. .ailed to e0ta<li0h an- inadeCuate training <- the cit- on u0e o. .orce or
>roviding reCuired medical care. 2inoBo0a v. Butler" No. +7'%+%**" 2++$ 5.S. ,>>. 6e)i0 222$2 @%th
Cir.;.
8hen a trial BudgeA0 in0truction0 a<out the legal 0tandard .or e)ce00ive u0e o. .orce =ere correct"
the BudgeA0 error concerning in0truction0 a<out the >ro>er u0e o. a >olice inve0tigatorA0 re>ort
concerning the 0hooting o. a 0u0>ect =ere harmle00. &he re>ort" containing 0tatement0 the 0hooting
o..icer made to a 0u>ervi0or a.ter the 0hooting" =hile Dhear0a- =ithin hear0a-D could have >ro>erl-
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<een con0idered a0 admi00ion0 <- a >art-'o>>onent in the la=0uit. &he trial court had" ho=ever"
allo=ed the re>ort to <e entered into evidence" and the 0tatement0 in the re>ort =ere mo0tl- u0e.ul .or
>ur>o0e0 o. im>eachment. ,0 the >lainti..A0 attorne- u0ed the 0tatement0 .or that >ur>o0e" an- error in
in0truction0 concerning the u0e o. the re>ort =ere harmle00. ,licea v. !al0ton" No. +*'4%21" 2++$
5.S. ,>>. 6e)i0 1+73* @5n>u<. 3rd Cir.;.
/ortion0 o. a re>ort <- a >olice de>artmentA0 1nternal 1nve0tigation0 Section =hich concluded that
o..icer0 detaining a man did 0o =ithout rea0ona<le 0u0>icion or >ro<a<le cau0e" u0ed e)ce00ive .orce"
and =ithheld medical treatment =a0 relevant evidence under (ed. !. Evidence 4+1" and >ortion0 o.
the re>ort =ere admi00i<le a0 an inve0tigative re>ort under (ed. !. Evid. $+3@$;@C;. &he court"
ho=ever" granted the cit-A0 motion to e)clude >ortion0 o. the re>ort con0i0ting o. intervie=0 o. .our
e-e=itne00e0 @=hich it .ound con0tituted Ddou<le hear0a-D;" and the legal conclu0ion o. the cit-A0
chie. la=-er. No=ell v. Cit- o. Cincinnati" No. 1:+3cv$%9" 2++* 5.S. Di0t. 6e)i0 *$1$2 @S.D. 3hio;.
MNO!N
1n arre0teeA0 la=0uit again0t 0tate troo>er .or alleged e)ce00ive .orce u0ed again0t him during the
arre0t" evidence that the troo>er had .ailed a >ol-gra>h te0t given on unrelated criminal charge0
<rought again0t him =a0 not admi00i<le a0 evidence" and evidence o. tho0e unrelated criminal charge0
=ere al0o not relevant to the i00ue o. =hether the troo>er had u0ed e)ce00ive .orce. Hur- verdict in
.avor o. troo>er u>held on a>>eal. Coo? v. State De>t. o. /u<lic Sa.et-" No. 2++% C, +47%" 92$ So.
2d %$9 @6a. ,>>. 2++*;. MNO!N
1n a la=0uit <- an arre0tee claiming that o..icer0 u0ed e)ce00ive .orce again0t him" even i. the
de>artmentA0 rule0 e0ta<li0hing >rocedure0 .or re0>onding to dome0tic violence call0 =a0 relevant in
0ome 0en0e" the trial Budge did not a<u0e hi0 di0cretion in e)cluded it .rom evidence" <ecau0e it had
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the >otential to con.u0e or mi0lead the Bur- concerning the i00ue0 in the ca0e. !u..in v. Cit- o.
Bo0ton" No. +3'21+2" 14* (ed. ,>>). %+1 @10t Cir. 2++%;. MNO!N
Evidence o. threat0 that an arre0tee allegedl- made <e.ore hi0 arre0t" =hich =ere rela-ed to the
o..icer0 =ho arrived on the 0cene =ere admi00i<le in e)ce00ive .orce la=0uit to 0ho= o..icer0A rea0on
.or entering a hou0e =ith their =ea>on0 dra=n and immediatel- rolling him .rom the 0o.a to the .loor
to handcu.. him. :allagher v. Cit- o. 8e0t Covina" No. +3'%%391" 141 (ed. ,>>). %77 @9th Cir.
2++%;. MNO!N
(ederal a>>eal0 court overturn0 Bur- verdict in .avor o. la= en.orcement de.endant0 =ho allegedl-
inter.ered =ith the e..ort0 o. >rivate >er0on0 to re0cue a man =ho Bum>ed into a river" and .ailed to
o..er a rea0ona<le alternative re0cue 0ervice. Court hold0 that Dcumulative'errorD doctrine 0hould
a>>l- to civil ca0e0" and that a ne= trial =a0 reCuired <ecau0e o. a num<er o. evidentiar- error0 made
<- the trial court. Bec? v. 2ai?" No. +1'2723 2++4 5.S. ,>>. 6e)i0 1%%9+ @*th Cir.;. M2++4 6! Se>N
1n a la=0uit again0t a to=n .or the death o. a motori0t =ho0e vehicle =a0 0truc? <- an o..icerA0 car"
the nature o. the call that the o..icer =a0 re0>onding to at the time =a0 relevant to determining
=hether the o..icer acted in rec?le00 di0regard o. the 0a.et- o. other0" and there.ore =a0 admi00i<le.
,llen v. &o=n o. ,mher0t" 77$ N.7.S.2d %9$ @,.D. 4th De>t. 2++4;. MNO!N
/lainti.. =ho =a0 0hot <- >olice o..icer could not =ithhold hi0 medical record0 in a .ederal civil
right0 la=0uit again0t the cit- and o..icer on the <a0i0 o. doctor'>atient >rivilege or medical record0
>rivilege" nor could he a00ert the right o. >rivac- <a0ed on a >rovi0ion o. the Cali.ornia 0tate
con0titution to >revent the di0clo0ure o. tho0e record0. &he >lainti.." =ho claimed that he =a0 0hot in
the <ac? <ecau0e the o..icer =a0 in >oor >h-0ical condition and =a0 there.ore una<le to >ur0ue him
on .oot" =a0 al0o entitled in the ca0e to the di0clo0ure o. the o..icerA0 medical record0" including tho0e
in a =or?er0A com>en0ation .ile. 2utton v. Cit- o. 4artineG" 219 (.!.D. 1*4 @N.D. Cal. 2++3;. MNO!N
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,rre0tee could not 0ucce00.ull- 0ee? damage0 <a0ed merel- on a cu0todial interrogation =ithout
4irada =arning0 =hen none o. her elicited 0tatement0 =ere ever u0ed again0t her at trial. (ederal
a>>eal0 court al0o overturn0 F$+"+++ maliciou0 >ro0ecution a=ard to arre0tee" =ho claimed that
o..icer0 .iled .al0e charge0 again0t her and maliciou0l- >ur0ued them in order to a00i0t her o..icer
<o-.riend" =ho 0he accu0ed o. dome0tic a<u0e. /lainti..A0 o>ening 0tatement at trial >ut the Cue0tion
o. the de.endant o..icerA0 truth.ul character into i00ue" 0o it =a0 >reBudicial error to e)clude evidence
o. that character. !enda v. Ping" +1'2421" 347 (.3d %%+ @3rd Cir. 2++3;. M2++4 6! (e<N
1n ca0e =here elderl- cou>le challenged the validit- o. 0earch =arrant .or their home" de.endant0
could <e reCuired to either >roduce a con.idential in.ormant .or an Din cham<er0D de>o0ition" to
reveal hi0 identit-" or to convince the court that" .or rea0on0 o. 0a.et-" hi0 identit- need not <e
revealed. 1n the alternative" the de.endant0 could <e <arred .rom >re0enting an- evidence at trial
<a0ed on the alleged e)i0tence o. the in.ormant. Smith v. Cit- o. Detroit" No. +1'7+74+" 212 (.!.D.
%+7 @E.D. 4ich. 2++3;. M2++3 6! ,ugN
,dmi00ion into evidence o. a videota>e 0ho=ing the >lainti.. conducting her dail- activitie0
during a trial o. her claim that 0he had 0u..ered 0eriou0 inBurie0 .rom the e)ce00ive u0e o. .orce <- a
>olice o..icer =a0 not im>ro>er and did not con0titute Dun.air 0ur>ri0eD =hen the >lainti..A0 attorne-
=a0 .urni0hed =ith a co>- and given a chance to vie= it >rior to it0 admi00ion. 4ei0elman v. B-rom"
2+7 (. Su>>. 2d 4+ @E.D.N.7. 2++2;. MNO!N
,dmi00ion into evidence o. an audiota>e o. an arre0teeA0 conver0ation =ith a >olice di0>atcher =a0
not an a<u0e o. di0cretion in a .ederal civil right0 ca0e in =hich the arre0tee claimed that 0he had <een
im>ro>erl- arre0ted .or >u<lic into)ication. &he audiota>eA0 re>roduction o. the arre0teeA0 Dh-0terical
conver0ationD =ith the di0>atcher =a0 Dno more >reBudicialD than the arre0ting o..icerA0 account o.
Dher drun?en <ehavior"D 0o that the court could not 0a- that it0 admi00ion =a0 0o >reBudicial that it
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violated the >lainti..A0 D0u<0tantial right0.D Diamond v. 2o=d" ++'*323" 2$$ (.3d 932 @*th Cir.
2++2;. MNO!N
Hur- =a0 >re0umed to have .ollo=ed trial BudgeA0 in0truction0 that la=-er0A 0tatement0 and
argument0 =ere not evidence" 0o that alleged mi0conduct <- de.endant >olice o..icer0A la=-er in
giving in.erence to the Bur- a<out item0 not in evidence during clo0ing argument0 =a0 in0u..icient to
0u>>ort a rever0al o. the Bur-A0 verdict .or the de.endant0 in a homeo=nerA0 .ederal civil right0 la=0uit
over alleged unrea0ona<le 0earch o. her hou0e under a =arrant. Hone0 v. 8illiam0" ++'%*929" 3%
(ed. ,>>). 424 @9th Cir. 2++2;. MNO!N
State troo>er0 de0tro-ed ta>e0 relating to an incident in good .aith >ur0uant to normal >ractice0
<e.ore an- litigation =a0 >ending" and additionall-" the >lainti..0 received tran0cri>t0 o. the ta>e0" 0o
that there could <e no adver0e in.erence a0 to D0>oilation o. evidenceD in an arre0teeA0 claim .or
inBurie0. ,rre0tee could not collect damage0 .or hi0 .all and crac?ed 0?ull =hile re0trained at the
>olice 0tation .ollo=ing hi0 arre0t .or driving =hile into)icated" <a0ed on te0timon- <- >lainti..A0 o=n
e)>ert =itne00 that he =a0 >ro>erl- re0trained" and that" =hile there =ere alternative re0training
method0" the- >o0ed their o=n ri0?0. !a-mond v. State" 74+ N.7.S.2d 743 @,.D. 2++2;. MNO!N
/lainti.. arre0teeA0 >rior hi0tor- o. drin?ing ha<it0" o=ner0hi> o. gun0" and u0e o. >re0cri>tion
drug0 =a0 >ro>erl- admitted into evidence =hen the >lainti.. an0=ered Cue0tion0 on tho0e i00ue0 on
cro00'e)amination =ithout o<Bection0. &rial BudgeA0 comment0 a<out arre0tee acting a0 hi0 o=n
la=-er in .al0e arre0t la=0uit did not reCuire a ne= trial. 3ABrien v. Hohn0on" $++ So. 2d *4 @6a. ,>>.
4th Cir. 2++1;. MNO!N
34%:14+ (iling o. =rong.ul death claim 2$ da-0 a.ter arre0tee died gave count- and 0heri..A0
de>artment actual notice that it 0hould not de0tro- audio ta>e0 o. 911 call0 and radio tran0mi00ion0
concerning incident9 Cali.ornia a>>eal0 court order0 .urther hearing0 to determine =hether 0anction0
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again0t de.endant0 in la=0uit are a>>ro>riate. Nel0on v. Su>erior Court" B147*+7" 1+7 Cal. !>tr. 2d
4*9 @Cal. ,>>. 2++1;.
34%:141 Evidence that 0u0>ect" a >arolee" >o00e00ed a gun at the time o..icer0 tried to detain him
on 0u0>icion o. auto the.t" =a0 admi00i<le in hi0 la=0uit again0t o..icer0 .or 0hooting and =ounding
him9 it =a0 relevant a0 tending to 0u>>ort the o..icer0A ver0ion o. the incident that he u0ed hi0 vehicle
a0 a =ea>on to endanger them in hi0 de0>eration to e0ca>e" Bu0ti.-ing their u0e o. deadl- .orce.
Steven0on v. D.C. 4etro>olitan /olice De>t." 24$ (.3d 11$7 @D.C. Cir. 2++1;.
343:1+% 1ntroduction o. evidence o. arre0teeA0 later 0econd arre0t .or dome0tic violence =a0 no
<a0i0" in the a<0ence o. >ro>er o<Bection" .or 0etting a0ide Bur-A0 verdict in .avor o. arre0ting o..icer0
on hi0 .al0e arre0tOe)ce00ive .orce claim0. 5dem<a v. Nicoli" ++'124*" 237 (.3d $ @10t Cir. 2++1;.
MNO!N Evidence 0u>>orted Bur-A0 verdict in .avor o. o..icer0 on .al0e arre0t claim. Even i. o..icer
=a0 tre0>a00ing on arre0teeA0 <u0ine00 >ro>ert-" the >lainti..A0 action in 0lamming the door on the
o..icerA0 hand =a0 an unrea0ona<le u0e o. .orce =hich could 0u>>ort hi0 arre0t .or <atter-. &rial court
erroneou0l- denied de.endantA0 reCue0t .or F27"+++ in co0t0 .or com>uteriGed evidence u0ed .or
>re0entation to Bur-" .urther hearing0 on rea0ona<lene00 reCuired. Ce.alu v. #illage o. El? :rove" No.
9$'27+$" 211 (.3d 41* @7th Cir. 2+++;.
343:1+% (ederal trial court <ar0 evidence o. >rior unrelated de>artmental di0ci>linar- action0
again0t o..icer accu0ed <- arre0tee o. e)ce00ive u0e o. .orce" a0 =ell a0 evidence a<out the e)i0tence
o. lia<ilit- in0urance9 te0timon- a<out =hether the arre0tee actuall- hit hi0 =i.e <e.ore the >olice
arrived =a0 not relevant to =hether the o..icer u0ed im>ro>er .orce. 4unle- v. Carl0on" 12% (. Su>>.
2d 1117 @N.D. 1ll. 2+++;.
341:7% ,udio ta>e o. >olice radio" including 0ound o. 0iren in unmar?ed car <eing activated" =a0
>ro>erl- admitted into evidence and 0hi.ted the <urden to the motori0t >lainti.. to 0ho= the
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inauthenticit- o. the ta>e9 hi0 mere a00ertion that he had heard no 0iren did not create a genuine i00ue
o. .act in hi0 la=0uit over the 0to> and 0earch o. hi0 vehicle. Smith v. Cit- o. Chicago" No. 99'29*%"
242 (.3d 737 @7th Cir. 2++1;.
329:74 Evidence that occu>ant0 o. a motor vehicle =or?ed in the Dadult entertainment indu0tr-D
and that one o. them =a0 a >ro0titute =ho had =or?ed in a legal <rothel =a0 irrelevant to i00ue0 in
.ederal civil right0 la=0uit over o..icerA0 detention o. them .ollo=ing a vehicle 0to> and 0earch o.
their >o00e00ion09 introduction o. evidence =ould al0o <e >reBudicial9 0tate la= emotional di0tre00
claim did not alter re0ult. S?ultin v. Bu0hnell" $2 (.Su>>. 2d 12%$ @D. 5tah 2+++;.
334:1%+ (ederal a>>eal0 court u>hold0 Bur- verdict in .avor o. o..icer =ho u0ed >olice dog to
0u<due an auto the.t 0u0>ect9 >lainti..A0 t=o >rior .elon- conviction0" <a0ed on no conte0t >lea0" =ere
>ro>erl- u0ed to im>each hi0 te0timon-9 >lainti.. =a0 not entitled to an e)>licit Bur- in0truction
concerning Dalternative cour0e0 o. actionD availa<le to the o..icer or the o..icerA0 alleged Dlac? o.
>ro<a<le cau0eD to <elieve that the >lainti.. =a0 armed. Bre=er v. Cit- o. Na>a" 9$'1*4*+" 21+ (.3d
1+93 @9th Cir. 2+++;.
MNO!N E)clu0ion o. non>art- >olice o..icer0A te0timon- =hich =a0 con0i0tent =ith >lainti..A0
ver0ion o. incident in =hich he =a0 mi0ta?enl- a>>rehended <- de.endant o..icer0 in grocer- 0tore
=a0 not harmle00" =hen detaineeA0 >rinci>al e-e=itne00 could <e vie=ed a0 un>er0ua0ive <ecau0e o.
her alleged <ia0 again0t >olice. 8a00erman v. Bartholome=" No. S'$23$" 9$7 /. 2d 74$ @,la0?a
1999;.
327:39 3..icer =a0 legall- Bu0ti.ied in 0hooting and ?illing a man advancing to=ard0 t=o o..icer0
=ith a ?ni.e held to hi0 o=n throat =ho had >reviou0l- 0ta<<ing hi0 <rother9 the .act that he >o0ed a
threat to the o..icer0 rendered irrelevant an- evidence o. >o00i<le alternate 0trategie0 o..icer0 might
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have u0ed >rior to that >oint" or evidence concerning the o..icerA0 >a0t di0ci>linar- record0 or cit- u0e
o. .orce >olic-. 7ello=<ac? v. Cit- o. Siou) (all0" 2+719" *++ N.8.2d %%4 @S.D. 1999;.
327:43 ,>>eal0 court u>hold0 Bur- verdict in .avor o. >olice o..icer0 in la=0uit over alleged
>o0itional a0>h-)ia in ca0e =here the- u0ed ?neeling =ri0tloc? on di0tur<ed man to ta?e him into
>rotective cu0tod-9 u0e o. courtroom demon0tration o. ?neeling =ri0tloc? techniCue =a0 >ro>erl-
admitted into evidence. Hone0 v. !all0" 9$'3%14" 1$7 (.3d $4$ @$th Cir. 1999;.
33+:$3 De>ut- >ro>erl- u0ed deadl- .orce again0t man advancing on him =ith a >iece o. concrete
in hi0 hand9 0heri..A0 .ailure to train de>utie0 in the u0e o. deadl- .orce again0t DcraG-D >eo>le =a0 no
<a0i0 .or lia<ilit- =hen general >olic- on u0e o. deadl- .orce =a0 correct and no 0ho=ing o. a >rior
>ro<lem in thi0 area =a0 0ho=n9 <a0i0 .or e)clu0ion o. e)>ert =itne00 =a0 erroneou0" <ut Bur- did not
need e)>ert hel> to conclude that de>ut- acted rea0ona<l-. /ena v. 6eom<runi" No. 99'143%" 2++
(.3d 1+31 @7th Cir. 1999;.
33+:$4 Hur- >ro>erl- heard evidence o. alleged a..air <et=een ma-or and arre0teeA0 =i.e" and trial
court >ro>erl- declined to in0truct Bur- that arre0tee had a dut- to 0u<mit to an arre0t =ithout
re0i0tance even i. it =a0 unBu0ti.ied9 a>>eal0 court u>hold0 a=ard0 totaling F114"+++ again0t >olice
chie. and ma-or in la=0uit claiming that im>ro>er arre0t =a0 made =ith e)ce00ive .orce <a0ed on a
>urel- >er0onal di0>ute <et=een ma-or and arre0tee. :o.. v. Bi0e" 9$'2$49" 173 (.3d 1+*$ @$th Cir.
1999;.
331:1+$ 3..icerA0 un0igned and un0=orn memorandum" >re>ared .or >olice de>artmentA0 legal
0ection" =a0 inadmi00i<le hear0a- =hich =a0 im>ro>erl- relied on <- trial Budge in granting 0ummar-
Budgment in maliciou0 >ro0ecution ca0e <rought <- a mem<er o. a communit- >olice monitoring
organiGation =ho =a0 i00ued a citation .or .ollo=ing a >olice vehicle in =hich t=o mem<er0 o. her
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grou> =ere <eing tran0>orted .ollo=ing their arre0t. Si?ora v. :i<<0" No. 9$,/'*%%" 72* N.E.2d %4+
@3hio ,>>. 1999;.
322:1%1 /lainti.. in civil right0 la=0uit concerning hi0 arre0t did not im>liedl- =aive thera>i0t'
>atient >rivilege <- including a claim .or emotional di0tre009 medical record0 during >lainti..A0 t=o'
-ear con.inement in mental health center a.ter incident not di0covera<le. 2uc?o v. Cit- o. 3a?
(ore0t" 1$% (.!.D. %2* @N.D. 1ll. 1999;. EditorA0 Note: 3ther ca0e0 on thi0 i00ue include: #ander<ilt
v. &o=n o. Chilmar?" 174 (.!.D. 22% @D. 4a00. 1997; @mere a00ertion o. emotional damage claim
doe0 not con0titute a =aiver o. thera>i0t'>atient >rivilege;9 and three ca0e0 in =hich an im>lied
=aiver =a0 .ound" (o) v. &he :ate0 Cor>." 179 (.!.D. 3+3 @D. Col. 199$;" #a0concell0 v. C-<e)"
9*2 (.Su>>. 7+1 @D. 4d. 1997;" and Sar?o v. /enn'Del Director- Co." 17+ (.!.D. 127 @E.D. /a.
1997;.
QNO!R (ederal trial Budge im>ro>erl- determined that he did not have di0cretion to con0ider
additional evidence =hen deciding =hether or not to u>hold a magi0trateA0 recommendation in an
arre0teeA0 la=0uit again0t inve0tigating o..icer09 he could >ro>erl- receive and con0ider ne= evidence
to determine =hether there =ere genuine i00ue0 o. .act that =ould de.eat a motion .or 0ummar-
Budgment. (reeman v. Count- o. Be)ar" 9%'%+1$$ 142 (.3d $4$ @%th Cir. 199$;.
3+%:77 Convicted ro<<er could not .ile 0uit o<Becting to the di0clo0ure o. medical record0 at hi0
criminal trial =hen he did not contend that he and the >er0on treated .or gun0hot =ound0 at ho0>ital
=ere the 0ame >er0on. :reen v. Coo>er 4edical 2o0>ital" 9*$ (.Su>>. 249 @E.D. /a. 1997;.
3+7:1+9 3..icer0 =ere entitled to good .aith immunit- .or 0eiGure o. truc? =ith mi00ing #ehicle
1denti.ication Num<er9 evidence uncovered <- their =arrantle00 0earch o. truc? =a0 admi00i<le
evidence in e0ta<li0hing their de.en0e even i. 0earch =a0 illegal9 .ederal a>>eal0 court rule0 that
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e)clu0ionar- rule doe0 not a>>l- in .ederal civil right0 la=0uit09 o..icer0 al0o entitled to o..icial
immunit- on &e)a0 0tate la= claim0. 8ren v. &o=e" 13+ (.3d 11%4 @%th Cir. 1997;.
3+9:14+ Evidence o. arre0teeA0 out0tanding >arole =arrant and >rior drug di0tri<ution conviction
=a0 admi00i<le in arre0teeA0 e)ce00ive .orce la=0uit again0t o..icer09 evidence o. >rior mi0demeanor
conviction0 and other conviction0 =hich =ere more than ten -ear0 old =a0 not. Daniel0 v. 6oiGGo"
9$* (.Su>>. 24% @S.D.N.7. 1997;.
31+:1%% 4an arre0ted .or murder and then con.ined" .or ten -ear0" in >0-chiatric .acilit- =hile
incom>etent .or trial" entitled to ne= trial in civil right0 la=0uit again0t o..icer0 alleging .al0e
im>ri0onment and maliciou0 >ro0ecution9 0uit claimed that con.e00ion to >olice =a0 >rocured through
>rior ta>ed conver0ation0 =ith mini0ter =ho allegedl- D.edD 0u0>ect detail0 o. crime9 e)clu0ion o.
ta>e0 .rom evidence =a0 rever0i<le error. Sut?ie=icG v. 4onroe Count- Sheri.." 11+ (.3d 3%2 @*th
Cir. 1997;.
31+:1%* /lainti.. in e)ce00ive .orce ca0e again0t >olice involving D>o0itional a0>h-)iaD could not
com>el de>o0ition o. de.endant0A la=-er regarding hi0 >er0onal ?no=ledge o. the danger0 o.
D>o0itional a0>h-)iaD =hen >lainti.. .ailed to 0ho= that in.ormation =a0 uno<taina<le through other
mean0" relevant and non'>rivileged" and crucial to >re>aration o. the ca0e. Hone0 v. Bd. o. /olice
ComAr0 o. Pan0a0 Cit-" 4o." 17* (.!.D. *2% @8.D. 4o. 1997;.
29*:124 1n 0uit over o..'dut- o..icerA0 0hooting o. >a00enger in 0to>>ed vehicle" trial court did not
err in e)cluding evidence o. >rior incident in =hich 0ame o..icer 0hot a 0u0>ect .rom another 0to>>ed
vehicle or in e)cluding evidence o. 1,C/ DmodelD >olicie0 concerning tra..ic 0to>0 <- o..'dut-
o..icer0" =hen i00ue =a0 not =hether 0to> =a0 >ro>er" <ut =hether u0e o. .orce again0t >a00enger
once 0to> =a0 made =a0 e)ce00ive Soller v. 4oore" $4 (.3d 9*4 @7th Cir. 199*;.
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2$7:172 3..icer =a0 im>ro>erl- <arred .rom te0ti.-ing a0 e)>ert =itne00 a0 to =hether 0heri..A0
alleged .ailure to train de>utie0 on >ro>er retrieval and u0e o. 0hotgun0 0tored in loc?ed trun?0 o.
crui0er0 created un0a.e =or?ing condition09 0ummar- Budgment .or de.endant 0heri.. and count-
overturned in 0uit <rought <- de>ut- 0hot <- a00ailant =hile attem>ting to retrieve 0hotgun .rom trun?
:entr- v. 4angum" 4** S.E.2d 171 @8.#a. 199%;.
2$%:137 Cit- and mental health agenc- =a0 not lia<le .or o..icerA0 0hooting o. >aranoid
0chiGo>hrenic a0 he e)ited hi0 <edroom" allegedl- advancing on o..icer =ith hatchet rai0ed9
de.endant0 adeCuatel- e)>lained rea0on0 .or 0tri?ing t=o <lac? Buror0" and trial Budge correctl-
e)cluded evidence =hich =a0 not relevant to the ca0e at hand 4cPeel v. Cit- o. /ine Blu.." 73 (.3d
2+7 @$th Cir" 199*;.
279:3$ E)>ert =itne00 te0timon- on Dhedonic damage0D @the enBo-ment value o. human li.e;.
<arred <- trial court in la=0uit over >olice 0hooting o. individual ,-er0 v. !o<in0on" $$7 (.Su>>.
1+49 @N.D.1ll. 199%;.
2$2:$4 Drug evidence .rom hou0e e)cluded at criminal trial <ecau0e o. illegalit- o. 0earch =a0
>ro>erl- introduced into evidence in civil de.amation la=0uit <rought <- re0ident again0t >olice chie.
=ho allegedl- told hi0 em>lo-er he =a0 a Ddrug dealerD9 Ne= 2am>0hire Su>reme Court decline0 to
a>>l- e)clu0ionar- rule in civil de.amation 0uit Sim>?in0 v. &o=n o. Bartlett" **1 ,.2d 772 @N2
199%;.
2$*:147 5.S. Su>reme Court ado>t0 thera>i0t'>atient >rivilege >rotecting di0clo0ure0 during
thera>- 0e00ion0 .rom com>elled di0clo0ure in court9 a..irm0 ordering o. ne= trial in =hich Bur-
a=arded F%4%"+++ in >olice 0hooting ca0e =here Bur- =a0 told it could >re0ume =ithheld thera>-
record0 =ould <e un.avora<le to o..icer Ha..ee v. ,llen" 11* S.Ct. 1923 @199*;.
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QNO!R Statement on 911 ta>e =hich allegedl- de0cri<ed o..icerA0 <eating o. >lainti.. =a0 not
admi00i<le into evidence in a<0ence o. an- 0ho=ing that the >er0on ma?ing the de0cri>tion had a .ir0t
hand ?no=ledge o. =hat he de0cri<ed Bemi0 v. Ed=ard0" 4% (.3d 13*9 @9th Cir. 199%;.
QNO!R 1t =a0 not an a<u0e o. di0cretion to re.u0e to allo= =itne00e0 =ho =ere not di0clo0ed in
>lainti..A0 >retrial li0t o. =itne00e0 to te0ti.-9 cit- >olice de>artment =ritten >olicie0 =ere not relevant
in >roving arre0teeA0 claim0 again0t cit- 4arti v. Cit- o. 4a>le=ood" 4o" %7 (.3d *$+ @$th Cir.
199%;.
2*9:*7 &a>e recording o. arre0t and alleged <eating o. arre0tee =hich revealed that o..icer
directed a racial e>ithet at arre0tee 0hould have <een admitted into evidence a0 it =a0 relevant to the
Bur-A0 ta0? o. deciding =hether .orce u0ed =a0 rea0ona<le under the circum0tance09 a>>eal0 court
rule0 that e)clu0ion o. thi0 >ortion o. ta>e =a0 an a<u0e o. di0cretion reCuiring a ne= trial in civil
right0 0uit <rought <- arre0tee Bro=n v. Cit- o. 2ialeah" 3+ (.3d 1433 @11th Cir. 1994;.
2*9:74 Evidence o. >lainti..A0 >rior criminal conviction0 =a0 >ro>erl- admitted into evidence
during hi0 cro00'e)amination =hen hi0 direct te0timon- o>ened the door to the evidence Duncan v.
8ell0" 23 (.3d 1322 @$th Cir. 1994;.
272:121 De.endant >olice o..icer0 had the right" in arre0teeA0 .ederal civil right0 e)ce00ive .orce
0uit again0t them" to cro00'e)amine arre0tee regarding hi0 >rior .elon- conviction0 during >a0t ten
-ear09 cro00'e)amination regarding .elon- conviction0 older than ten -ear0 <arred a0 undul-
>reBudicial Charle0 v. Cotter" $*7 (.Su>>. *4$ @N.D.1ll. 1994;.
Erroneou0 admi00ion o. narcotic0 in.ormerA0 hear0a- 0tatement0 into evidence =a0 not harmle00
and reCuired rever0al o. Bur- verdict in .avor o. arre0tee in civil right0 0uit again0t narcotic0 agent
6i>>a- v. Chri0to0" 99* (.2d 149+ @3rd Cir. 1993;.
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&rial court >ro>erl- admitted certi.ied record0 o. >lainti..A0 ro<<er- and >o00e00ion o. concealed
=ea>on0 conviction0 into evidence" a0 =ell a0 evidence o. hi0 conviction o. /C/ drug to im>each hi0
0tatement0" including 0tatment0 that he had never u0ed /C/ :ee v. /ride" 992 (.2d 1%9 @$th Cir.
1993;.
4otori0t inBured in colli0ion =ith >olice vehicle could >re0ent evidence" in 0uit again0t cit-" that
o..icer allegedl- attem>ted to inter.ere =ith <-0tander attem>t0 to aid him .ollo=ing the accident9
evidence =a0 relevant to i00ue o. motori0tA0 emotional inBurie0 Creed v. Cit- o. Colum<ia" 42* S.E.2d
7$% @SC 1993;.
,rre0tee 0uing o..icer0 .or alleged >rete)tual arre0t 0hould have <een allo=ed to introduce
evidence o. >rior incident0 =hich =ere too long ago to <e the <a0i0 .or a 0uit" <ut =hich 0till could <e
u0ed to 0ho= o..icer0A alleged retaliator- motive .or arre0ting him !o<<in0 v. Cit- o. 4iami Beach"
*13 So.2d %$+ @(la ,>>. 1993;.
Sue0tion0 concerning >lainti..A0 >rior .elon- conviction0 =ere clearl- >ro>er .or >ur>o0e0 o.
im>eaching hi0 truth.ulne00 a0 a =itne009 Cue0tion0 concerning hi0 current incarceration" =hile
generall- inadmi00i<le .or im>eachment >ur>o0e0" =ere allo=a<le .or the >ur>o0e o. re.uting hi0
claim that it =a0 the de.endant o..icer0A action0 that led to hi0 Dnegative >erce>tionD o. la=
en.orcement :ora v. Co0ta" 971 (.2d 132% @7th Cir. 1992;.
&rial court >ro>erl- admitted evidence o. medical record0 o. >lainti.. in 0uit over .ight =ith >olice
o..icer9 i00ue o. =hether >lainti.. had the a<ilit- to control hi0 anger and initiated .ight made
admi00ion to ho0>ital ?no=n a0 treatment center .or >0-chiatric >ro<lem0 relevant Hone0 v. 8il<ur"
*+4 ,.2d 779 @!1 1992;.
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Evidence o. charge0 and conviction o. ra>e and ?idna>>ing =hich =ere rea0on .or arre0t =ere
admi00i<le in civil right0 la=0uit <rought <- arre0tee .or alleged e)ce00ive .orce 2ernandeG v.
Ce>eda" $*+ (.2d 2*+ @7th Cir. 19$$;.
/lainti.. 0ue0 o..icer0 .or e)ce00ive u0e o. .orce in arre0ting him9 no error to admit evidence o. hi0
>rior conviction0 .or ro<<er-" ra>e and .orci<le 0odom- Hone0 v. Bd o. /olice Commi00ioner0" $44
(.2d %++ @$th Cir. 19$$;. Congre00ional re>ort on >olice mi0conduct inadmi00i<le ,nder0on v. Cit-
o. Ne= 7or?" *%7 (.Su>>. 1%71 @S.D.N7 19$7;.
State trial BudgeA0 te0timon- a<out o..icer0A credi<ilit- inadmi00i<le in arre0teeA0 civil right0
la=0uit9 o..icer0 granted ne= trial SchultG v. &homa0" $32 (.2d 1+$ @7th Cir. 19$7;.
,rre0tee a=arded F1%1"*$+ .or alleged a00ault <- o..icer09 admi00ion into evidence o. di0mi00al o.
charge0 =a0 error <ut cured <- Bur- in0truction0 Hared v. Cit- o. Ne= 7or?" %19 N.7.S.2d 717 @,.D.
19$7;.
1n <rutalit- 0uit again0t o..icer" 2a=aii 0u>reme court admit0 evidence o. other =rong0 he
committed and character evidence 0ho=ing >ro>en0it- .or violence 4e-er v. Cit- and Count- o.
2onolulu" 731 /.2d 149 @2a=aii 19$*;.
,rger0inger v. 2amlin @4+7 5.S. 2%; e0ta<li0he0 that the right to the a00i0tance o. coun0el"
=hether retained or court a>>ointed" i0 reCuired in all >ro0ecution0 =hich ma- re0ult in
im>ri0onment" unle00 a com>lete (aretta canva0 ha0 <een com>leted and the reCue0t .or =aiving
coun0el i0 granted.
8hile there i0 a time and >lace" >erha>0 .or 3rder0 .inding Summar- Contem>t under N!S
22.+3+...>erha>0" the greate0t 0trength a Budge can demon0trate i0 the a<ilit- to 0ho= a little =ea?ne00"
to demon0trate 0omething other than ruling =ith an iron hand" to do 0omething other than cru0h an-
voice o. di00ent in her court. &o 0trangle out o. litigant0 the .reedom to Gealou0l- adovocate on their
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o=n or anotherA0 <ehal. @in the ca0e o. licen0ed attorne-0; i0 >erha>0 the mo0t heinou0" 0ad" and ugl-
thing a Budge could do. , Budge =hom demon0trate0 an a<ilit- to over0ee that =hich ma?e0 her le00
than com.orta<le in her courtroom" that =hich 0he doe0 not nece00aril- agree =ith" i0 a Budge 0ecure
in hher a<ilitie0 and a=are o. the >remium on re0traint and >atience called .or in order .or a Budge and
court to tran0cend .rom mere de<t collector .or the Cit- ,ttorne- to im>artial ar<iter o. .act and la=.
&o demon0trate other=i0e ma- create an atmo0>here =here court em>lo-ee0 over0te> their <ound0
and <egin to <ull- and hara00 tho0e 0ee?ing to acce00 Bu0tice" a true violation o. the tru0t in =hich the
>u<lic endo=0 0uch >u<lic 0ervant0. Even >erha>0" =here 4ar0hal0 are a<le to =hi0>er into 3rma0A0
ear" in o>en court" then =here the under0igned need0 to u0e the re0troom" the Court 3rder0 him to
leave hi0 note>ad in the courtroom" then the udner0igned i0 0ummaril- interrogated <- the Court .rom
the Bench in 0ome =a- a<out Ddevice0D li?e he i0 a ma.ia in.ormant <eing rundo=n <- the Don" then
the under0igned i0 arre0ted" 0tri> 0earched" ha0 hi0 >ro>ert- con.i0cated. ,nd it0 im>ortant >ro>ert-"
including" <ut not limited to t=o di..erent cell >hoen0. 2o= i0 the under0igned 0u>>o0ed to
communicate =ith client0E (urther" the under0igned i0 a recent victim o. dome0tic violence @(#12'
++1$7 and (#12'++1$$;" and rendering him more vulnera<le through conver0ion o. hi0 mean0 o.
emergenc- communiction0" hi0 cell >hone0" i0 not Bu0ti.ied here.
N
8here0 De.endant =ent to great length0 to demon0trate to Hudge 2o=ard and the !4C that
he i0 indigent" he" a>>arentl-" i0 not Iallo=edJ to <e 0o" 0o much 0o that thi0 Court =ent again0t the
Nevada Court o. 6imited Huri0diction Bench Boo? o. 2++$ and it0 2+1+ Su>>lement in den-ing the
under0igned the hi0 Si)th ,mendment !ight &o Coun0el" 0et .orth e)>licitl- in 0everal location0 in
the Bench Boo? and mandator- authorit- in the5nited State0. ,rger0inger v. 2amlin" @4+7 5.S. 2%;.
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, /etition to /roceed in 1(/ and receive a co>- o. the audio recording o. an- >roceeding0 in thi0
matter i0 0u<mitted along =ith thi0 in0tant .iling.
Nevada N!C/ *+@<;@3; allo=0 a >art- to move .or relie. .rom a Budgment =hich i0 void" and
=hile motion0 made under N!C/ *+@<; are generall- reCuired to D<e made =ithin a rea0ona<le timeD
and to <e adBudicated according to the di0trict courtA0 di0cretion" thi0 i0 not true in the ca0e o. a void
Budgment. Nece00aril- a motion under thi0 >art o. the rule di..er0 mar?edl- .rom motion0 under the
other clau0e0 o. !ule *+@<;. &here i0 no Cue0tion o. di0cretion on the >art o. the court =hen a motion
i0 made under Mthi0 >ortion o. the !uleN. Nor i0 there an- reCuirement" a0 there u0uall- i0 =hen
de.ault Budgment0 are attac?ed under !ule *+@<;" that the moving >art- 0ho= that he ha0 a
meritoriou0 de.en0e. Either a Budgment i0 void or it i0 valid. Determining =hich it i0 ma- =ell >re0ent
a di..icult Cue0tion" <ut =hen that Cue0tion i0 re0olved" the court mu0t act accordingl-. B- the 0ame
to?en" there i0 no time limit on an attac? on a Budgment a0 void. . . . MENven the reCuirement that the
motion <e made =ithin a Drea0ona<le time"D =hich 0eem0 literl- to a>>l- . . . cannot <e en.orced =ith
regard to thi0 cla00 o. motion. 5nder0tanda<l-" the >artie0 =ere not attuned to our recent Haco<0
deci0ion during oral argument. ,ccordingl-" it =a0 determined at that time to allo= the >artie0 to
0u>>lement their <rie.0 in order to determine =ith certaint- =hether" in .act" no de.ault had <een
entered again0t :arcia >rior to the entr- o. the de.ault Budgment. :arciaA0 0u>>lemental material
0u>>lied additional evidence that no de.ault =a0 ever entered" including an a..idavit <- Clar? Count-
Court Cler? 6oretta Bo=man atte0ting that no 0uch .iling e)i0t0 in the ca0e .ile. !e0>ondent0 al0o
ac?no=ledged that no de.ault =a0 ever entered <ut argue in their 0u>>lemental <rie. that Haco<0
0hould not <e a>>lied retroactivel-" noting that the de.ault Budgment at i00ue herein =a0 entered >rior
to our Haco<0 deci0ion. &hi0 argument i0 =ithout merit. &he court in Haco<0 determined" con0i0tent
=ith la= .rom other Buri0diction0" that the de.ault Budgment entered in Haco<0 =a0 void. 8e
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accordingl- ordered the di0trict court to grant relie. .rom the void Budgment" de0>ite the .act that the
ruling in Haco<0 =a0" o. cour0e" >receded <- entr- o. the de.ault Budgment again0t Haco<0. 1. thi0 ca0e"
rather than Haco<0" =ere <e.ore u0 a0 a ca0e o. .ir0t im>re00ion" =e =ould have reached the 0ame
conclu0ion. , void Budgment i0 void .or all >ur>o0e0 and ma- not <e given li.e under a theor- <a0ed
u>on lac? o. legal >recedent. :arcia v. 1deal Su>>l- Co." 11+ Nev. 493" $74 /.2d 7%2 @Nev.
%O19O1994;. &he de.ective 0ervice rendered the di0trict courtA0 >er0onal Buri0diction over :a00ett
invalid and the Budgment again0t her void. (or a Budgment to <e void" there mu0t <e a de.ect in the
courtA0 authorit- to enter Budgment through either lac? o. >er0onal Buri0diction or Buri0diction over
0u<Bect matter in the 0uit. /u>hal v. /u>hal" **9 /.2d 191 @1daho 19$3;. 1n /rice v. Dunn" 1+* Nev.
1++" 7$7 /.2d 7$% @199+;. 8e no= hold that the .iling o. a motion to 0et a0ide a void Budgment
>reviou0l- entered again0t the movant 0hall not con0titute a general a>>earance. See" e.g." Do<0on v.
Do<0on" 1+$ Nev. 34*" 349" $3+ /.2d 133*" 133$ @1992;. Nonethele00" 0ince the order =a0 void" a
Budgment <a0ed thereon =ould li?e=i0e <e void.. Nel0on v. Sierra Con0tr. Cor>." 77 Nev. 334" 3*4
/.2d 4+2. 5nder N!C/ *+@<; a motion to 0et a0ide a void Budgment i0 not re0tricted to the 0i) month0A
>eriod 0>eci.ied in the rule. N!C/ %4@a; >rovide0 that the =ord DBudgmentD a0 u0ed in the0e rule0
include0 an- order .rom =hich an a>>eal lie0. &here.ore there i0 no merit to a>>ellant0A contention
that the motion to vacate the Budgment =a0 not timel- made. (o0ter v. 6e=i0" 7$ Nev. 33+" 372 /.2d
*79 @Nev. *O19O19*2;. , void Budgment i0 0u<Bect to collateral attac?9 a Budgment i0 void i. the
i00uing court lac?ed >er0onal Buri0diction or 0u<Bect matter Buri0diction9 See 49 C.H.S. Hudgment0 T
4+1" at 792 @1947 U 0u>>. 1991;9 4* ,m.Hur.2d Hudgment0 TT *21'%* @19*9 U 0u>>. 1991;.
!eno Cit- ,ttorne-A0 8ong and 3rmaa0 0ho=ed a di0tur<ing lac? o. concern =ith regard to
the re>ort0 that an !/D had admitted to ta?ign <ri<e0 .rom !ichard :. 2ill" E0C. (urther" thi0 Corut
e)>loded at the under0igned at one >oitn in the &rial" threatening to Dthro= -ou in Bail i. -ou 0a- the
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name !ichard 2ill one more timeVD. &hi0 &ra..ic citation0 =a0 i00ued minute0 a.ter the under0igned
=a0 told to leave !ichard :. 2illA0 la= o..ice <- !/D Sargent &arter @=ho didnAt even =rite the tic?et
here" and a0 0uch the *th ,mendment right to con.ront the accu0er =a0 violated <- the other o..icerA"
the material =itne00" not <eing >re0ent .or the &rial. he =a0nAt >re0ent .or the DCali.ornia !ollD
either" 0o it0 unclear =h- it0 o?a- .or Sargent &arter to have him =rite the tic?et .or Sargent &arter"
=hom admitted he had onl- =ritten one 0uch tic?et in the entire -ear >receding hi0 involvment in thi0
11O1%O11 incident. Shortl- <e.ore Sargetn &arter told the under0igned to leave 2illA0 la= o..ice
@=here the udner0igned =ent 0hortl- a.ter <eing relea0ed .rom a lovel- 3 da- 0ta- in Bail >ur0uant to
2illA0 0ignign a criminal tre0>a00 Com>laint in 11 cr 2*4+% @=here !4C a>>ointed de.ender too? on
re>re0entation de0>ite a clear con.lict" then &aitel agree to a continuance <ecau0e 2ill =a0 goign to <e
on vacation .or a month" all =ithout con0ulting the under0igned client" etc...W;4r. 8ong did e)>re00 a
com>lete lac? o. concern to the under0igned =hen it =a0 re>orted to him that a !/D 3..icer" Chri0
Carter" had admitted to the under0igned that the o>>o0ing coun0el in !HC !E#2+11'++17+$
0ummar- eviction .rom a commercial tenanc- la= o..ice =here non >a-ment o. rent =a0 not alleged
@in violation o. N!S 4+.2%3A0 e)>re00 dictate again0t 0uch action0; had >aid mone- to !/D 3..icer
Carter to arre0t the under0igned @a <ri<e;. 4r. 8ong indicated a com>lete lac? o. con0ternation in
thi0 regard and e)>re00ed that he intended to conduct Gero .ollo= u> =ith re0>ect to that trou<ling
<reach o. the >u<lic tru0t" even though" a0 a !eno Cit- ,ttorne-" 4r. 8ong li?el- ha0 a dut- to do 0o
and hi0 .ailure to =ill augur 0trongl- to=ard a .inding that the !eno Cit- ,ttorne- i0 lia<le .or an-
!/D mi0conduct on a negligent hiring" training" and 0u>ervi0ion claim and that the !eno Cit-
,ttorne- i0 a=are o. and" in .act" rati.ie0 or endor0e0 0uch <ri<e ta?ing <- the !/D .rom !ichard :.
2ill" E0C" o>>o0ing coun0el in that !HC eviction matter.
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5nder .ederal la=" a0 =ell a0 the la= o. 0ome 0tate0" the mi0<ehavior that >ermit0 0ummar-
action mu0t in addition >re0ent an imminent threat to the admini0tration o. Bu0tice9 it mu0t
immediatel- im>eril the Budge in the >er.ormance o. hi0 or her Budicial dut- or con0titute an actual
o<0truction o. Bu0tice. 5.S. v. &urner" $12 (.2d 1%%2 @11th Cir. 19$7; @attorne-A0 >o0ing o. 0ingle
Cue0tion to =itne00 a<out race o. certain individual0" though in clear violation o. ver<al court order"
did not 0o o<0truct Bu0tice a0 to ena<le court to re0ort to 0ummar- >rocedure .or contem>t under
(ederal !ule o. Criminal /rocedure 42@<;;9 1n re 2ollo=a-" 99% (.2d 1+$+ @D.C. Cir. 1993; @attorne-
>ur0ued line0 o. Cue0tioning ruled out <- Budge;.8itne00A0 re.u0al to an0=er Cue0tion0 the court
order0 him to an0=er i0 contumaciou0 conduct =hich ma- 0u<Bect =itne00 to 0ummar- >uni0hment
.or criminal contem>t under Direct contem>t Bu0ti.-ing 0ummar- di0>o0ition i0 con.ined to
e)ce>tional circum0tance0 involving act0 threatening the Budge" di0ru>ting the hearing" or o<0tructing
court >roceeding0. !ule 42. 1n re Bo-den" *7% (.2d *43 @%th Cir. 19$2;. Becau0e 0ummar- contem>t
>rocedure .ill0 a need .or the immediate >enal vindication o. the dignit- o. the court" it0 a>>lication i0
con.ined to unu0ual 0ituation0 =here the courtA0 in0tant action i0 nece00ar- to >rotect the Budicial
in0titution it0el.. 1n re :u0ta.0on" *19 (.2d 13%4" %$ ,.6.!. (ed. 1 @9th Cir. 19$+;" on rehAg" *%+ (.2d
1+17 @9th Cir. 19$1;.
N!S 22. +3+. Summar- >uni0hment o. contem>t committed in immediate vie= and
>re0ence o. court9 a..idavit or 0tatement to <e .iled =hen contem>t committed out0ide
immediate vie= and >re0ence o. court9 di0Cuali.ication o. Budge:
I1. 1. a contem>t i0 committed in the immediate vie= and >re0ence o. the court or Budge at
cham<er0" the contem>t ma- <e >uni0hed 0ummaril-. 1. the court or Budge 0ummaril- >uni0he0
a >er0on .or a contem>t >ur0uant to thi0 0u<0ection" the court or Budge 0hall enter an order
that:
@a; !ecite0 the .act0 con0tituting the contem>t in the immediate vie= and >re0ence o. the court
or Budge9
@<; (ind0 the >er0on guilt- o. the contem>t9 and
@c; /re0cri<e0 the >uni0hment .or the contem>t...J
1%4 ,6! 1227" Nece00it- and Su..icienc- o. 4a?ing and !ecording Su<0idiar- or Detailed
(inding0 Su>>orting ,dBudication o. Direct Contem>t.
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Statute >roviding that in all ca0e0 o. contem>t ari0ing =ithout immediate vie= and >re0ence o.
court" Budge o. court in =ho0e contem>t de.endant i0 alleged to <e" 0hall not >re0ide at 0uch
trial over o<Bection o. de.endant" i0 con0titutional. N.C.6.1929" T $943. 4cCormic? v. Si)th
Hudicial Di0t. Court in and .or 2um<oldt Count-" 19%+" 21$ /.2d 939" *7 Nev. 31$. Contem>t
(or >ur>o0e0 o. 0tatute governing 0ummar- contem>t >roceeding0 .or direct contem>t committed
in BudgeA0 >re0ence" =hich reCuire0 court to Ienter an order"J =hile a trial courtA0 oral
contem>t order i0 immediatel- en.orcea<le" a =ritten order including the 0tatuteA0 reCuired element0
mu0t <e >rom>tl- entered. 2ou0ton v. Eighth Hudicial Di0t. Court e) rel. Count- o.
Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44.
,>>ro>riate remed- .or attorne- =ho had <een .ound in direct contem>t o. court in divorce
>roceeding in =hich he re>re0ented =i.e" =here contem>t order had <een .ound to <e in0u..icient
<- Su>reme Court" in that it did not contain a 0u..icient 0tatement concerning =hat conduct
=a0 held to <e contem>tuou0" =a0 to >ermit trial court to enter amended order" given that
Su>reme CourtA0 o>inion addre00ed i00ue o. .ir0t im>re00ion and announced 0tandard .or content0
o. =ritten contem>t order. 2ou0ton v. Eighth Hudicial Di0t. Court e) rel. Count- o.
Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44.
2ere" 0eemingl-" the Summar- Contem>t 3rder relie0 in >art on Dcontinuing line0 o. inCuir-
a.ter told <- the Court not to do 0o...D ho=ever an- 0uch alleged in0tance0 o. thi0 are e)>lained a=a-
<- the .act that an- 0uch Cue0tion0 =here not >o0ed to >rove the truth o. the matter a00erted <ut rather
.or other >ermi00i<le >ur>o0e0 @and thi0 =a0 >ointed out to the Court at trial; and the ultimate
Cue0tion Bu0t >rior to thi0 CourtA0 continuing the &rial =a0 onl- hal.=a- .ini0hed >rior to the Court
interBecting the >uni0hment. (urther" .or Hudge Na0h 2olme0 ruling that it i0 not relevant here
=hether !/D =a0 retaliating again0t the under0igned" or made an- mention o. doing 0o i0 >lain error.
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, =ritten 0ummar- contem>t order" i00ued >ur0uant to 0tatute governing 0ummar- contem>t
>roceeding0 .or direct contem>t committed in BudgeA0 >re0ence" mu0t 0et .orth 0>eci.ic .act0
concerning the conduct .ound to <e contem>tuou0. 2ou0ton v. Eighth Hudicial Di0t. Court e) rel.
Count- o. Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44. Hudge Na0h 2olmeA 3rder i0 a>>arentl- not
even in =riting @a0 .ar a0 the under0igned ?no=0 at thi0 >oint" and i. criminal de.endnat0 can lo0e
their right to an a>>eal =here N!S 1$9.+1+ hold0 them to an incredi<l- Cuic? 1+ calendar da-0 to .ile
a notice o. a>>eal" thi0 Court 0hould lo0e it0 right to reduce the Summar- Contem>t 3rder to 0>eci.ic"
detailed =ritten order =here it ha0 not alread- done 0o; or in a Dchec? the <o)D variet-" on a
>re>rinted .orm" 0eemingl- ta?en .rom the Bench Boo?" containing mere conclu0or- and circular
0tatement0 a<out the >ur>orted contem>t and in no =a- 0ati0.ie0 the a<ove 0tandard. 1ndeed" Hudge
Na0h 2olme0 doe0 not 0>eci.- =hat Dline0 o. inCuir-D =ere continued" nor i0 it clear ho= a >ro 0e
de.endant denied hi0 Si)th ,mendment !ight &o Coun0el could rea0ona<l- ?no= =hat i0 reCuired o.
him to com>l- =ith Hudge Na0h 2olme0 vague and menacing contem>t >ronoucement0 =hile al0o
Gealou0l- advocating on the de.endantA0 <ehal.. &he under0igned could not have rea0ona<l- <een
0aid to have <een =arned =ith an- 0>eci.icit- a0 to =hat =a0 ver<oten or ho= he could com>l- =ith
the CourtA0 =arning" >articularl- i. .undamental notion0 o. due >roce00 and .air >la- =ere to a>>l-"
=hich i0 im>licit in all action0.
8ritten 0ummar- contem>t order .inding attorne- .or =i.e in divorce >roceeding in direct
contem>t o. court .ailed to indicate =hat >articular comment0 <- attorne- =ere held to <e
contem>tuou0" and" thu0" order =a0 in0u..icient" under 0tatute governing 0ummar- contem>t
>roceeding0 .or direct contem>t committed in BudgeA0 >re0ence. 2ou0ton v. Eighth Hudicial Di0t.
Court e) rel. Count- o. Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44.
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3ther than indicating the de.endant Dloo?ed in thi0 >oc?et0D" Hudge A0 3rder doe0 little to
com>l- =ith the a<ove 0tandard. (urther" Hudge Na0h 2olme0 ma?e0 allegation0 o. IlaughterJ"
ho=ever" and thi0 goe0 to the Ievident im>artialit-O4otion .or !ecu0alJ" Hudge Na0h 2olme0 0eemed
to go to great length0 to 0tri?e .rom the record an-thing that might <e 0aid to >lace the !4C or the
!eno Cit- ,ttorne- on notice" 0u..icient ot de.eat an- >lau0i<le denia<ilit- claim" o. !/D
im>ro>riet-" >otentiall- in connection =ith a negligent hiring" training" and 0u>ervi0ion claim or other
action" a la 42 5SC Sec 19$3" =herein the training" cu0tom0" and >olicie0 o. the !/D and !eno Cit-
,ttorne- ma- <e im>ortant to ?no=. HHudge Na0h 2olme0 doe0 not ma?e clear ho= attem>t to
>rohi<it 0uch allo=0 .or a de.endant to Gealou0l- advocate on hi0 o=n <ehal." or =hether it i0 ever
>ermi00i<le" or even a 0?ill.ul trial tactic" .or a litigant to engage in =hatever it =a0 that u>0et thi0
Court. !eall-" =hat Hudge Na0h 2olme0 0eem0 to =ant the mo0t i0 .or tho0e de.endant0 that he
=i0he0 to .ind guilt- to la- do=n and die a death o. 0ort0 in hi0 courtroom" and to than? the !4C .or
it0 =i0J
During the .ive da- incarceration .or 0ummar- contem>t ordered in thi0 matter" the
under0igned =a0 denied a 0ingle >hone call or tier time <- Sheri..A0 De>utie0 on one da-" and on
another ma?ing 0uch >hone call0 =a0 im>o00i<le given the im>lementation o. a ne= >hone 0-0tem at
the Bail" re0ulting in much >reBudice to hi0 clientA0 ca0e0. 1t i0 0im>l- unto=ard .or Budge0 to leverage
clientA0 =oe0 to .urther >uni0h an attorne-" =here" a0 here" the Court 0eemed to 0ugge0t that an-
re0>on0i<ilit- o. thi0 Court to a>>ro>riatel- con0ider and rule on a 4otion to Sta- or other=i0e allo=
.or >recaution0 to <e ta?en to avoid >reBudice to client matter0 not the courtA0 concern" <ut rather" =a0
>urel- the under0ignedA0 .ault.
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1t i0 in0tructive to com>are Hac?0onA0 inter>retation o. the Hudge Na0h 2olme0A0 3rder" and to
con0ider to e)tent to =hich 0he ma- <e acting in a Budicial ca>acit- @unle00 thi0 Court =ill >rovide
0ome indication o. =hether Hac?0onA0 email =a0 done at the <ehe0t o. an- o. the !4C Hudge0;.
4otivational in0>iration .or the !4C" Cit- o. !eno 4ar0hal0 2-lin" and Chie. !o>er" and
can <e .ound in 6i>>i0 v. /eter0" 112 Nev. 1++$" 921 /.2d 124$ @199*;:
I&he Budgment a=arding .ee0 in thi0 ca0e im>o0e0 u>on t=o Bu0tice0A court0 and 0even
Bu0tice0 o. the >eace an o<ligation to >a- to the tenant0A attorne-0 the 0um o.
F1$"*93.%+. &hi0 Budgment doe0 >re0ent a >ro<lem =hen =e 0tart to thin? a<out ho=
the0e >u<lic o..icial0 and t=o court0 o. la= might go a<out allocating the o<ligation o.
F1$"*93.%+. 1t =ould not a>>ear that the court0 them0elve0 are 0u<Bect to e)ecution
>roce009 and" there.ore" the .ee" i. it =ere going to <e >aid" =ould have to <e >aid <-
the individual Bu0tice0" =ho =ould have to >a-" i. the matter =ere handled .airl-"
F2"*7+.%+ each. &he Bu0tice0A Budgment o<ligation to >a- attorne-0A .ee0 i0 <a0ed @1; on
their having .ollo=ed a >rocedural rule @HC!C/ 1+*; enacted <- thi0 court and @2; on
their having made 0everal erroneou0 Budicial deci0ion0. 8e he0itate to get into the
thorn- >ro<lem0 >re0ented <- thi0 Budgment" >ro<lem0 relating to e)ecution u>on
>u<lic >ro>ert-" relating to o..icial immunit- and Budicial immunit- and 0ome other
0imilar >ro<lem0 that attend the en.orcement o. 0uch a Budgment...J 6i>>i0 v. /eter0"
112 Nev. 1++$" 921 /.2d 124$ @199*;: I1n their action challenging Bu0tice court0A
>ractice o. den-ing a>>eal0 to di0trict court in 0ummar- eviction action0" tenant0 did
not allege that the- =ere de>rived o. .ederal right0" and there.ore the- could not claim
attorne- .ee0 under .ederal civil right0 0tatute. 42 5.S.C.,. TT 19$3" 19$$.J
De.endant ma- ultimatel- <e .orced to <e 0o alleging 0uch a de>rivation and or claim 0uch
attorne-A0 .ee09 See, also, Cheung v. Eighth Hudicial Di0t. Court e) rel. Count- o. Clar?" 124 /.3d
%%+" %%2" 121 Nev. $*7" $*9 @2++%;9 Schneider v. El?o Count- Sheri..A0 De>t." 17 (.Su>>.2d 11*2"
11*% @199$;9 :.C. 8allace" 1nc. v. Eighth Hudicial Di0t. Court o. State" e) rel. Count- o. Clar?" 2*2
/.3d 113%" 114+X" 127 Nev. ,dv. 3>. *4" *4X @2+11;.
,>>eala<ilit- o. contem>t adBudication or conviction. 33 ,.6.!.3d 44$ @3riginall- >u<li0hed
in 197+;9 T 12MaN :enerall-Y!ule o. a>>eala<ilit- MCumulative Su>>lementN Contem>t >roceeding0
not characteriGed a0 criminal or civil have .reCuentl- <een held or recogniGed to <e a>>eala<le in the
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a<0ence o. 0tatute0 other than tho0e generall- ma?ing .inal deci0ion0 a>>eala<le.5S 1n re !-an" %3$
(.2d 43%" 7* 2 5.S. &a) Ca0. @CC2; / 9%1$" 3$ ,.(.&.!.2d %4%2 @D.C. Cir. 197*; ,la 5hl0 v 5hl0
@19$9" ,la ,>>; %%1 So 2d 1+*% E) >arte Bo-?in @1994" ,la Civ ,>>; *%* So 2d $21 ,la0?a
:illette v Co..er @1912; 4 ,la0?a *22 @recogniGing rule; Cal 6aBella v Pai0er (oundation 2ealth
/lan" 1nc. @1977; 72 Cal ,>> 3d 499" 13$ Cal !>tr 212 (or Cali.ornia ca0e0" 0ee T 1*" in.ra Colo 2ill
v Boatright @1994" Colo ,>>; $9+ /2d 1$+" reh den @Se> 1%" 1994; and cert gr @(e< 2+" 199%; DC 33
,.6.!.3d 44$ /age 17$ 33 ,.6.!.3d 44$ @3riginall- >u<li0hed in 197+; (or Di0trict o. Colum<ia
ca0e0" 0ee T 3MaN" 0u>ra (la State e) rel. /ear0on v Hohn0on @(la ,>>; 334 So 2d %4 (or (lorida ca0e0"
0ee T *MaN" 0u>ra :a 4anning v 4NC Con0umer Di0count Co. @1994; 212 :a ,>> $24" 442 SE2d
919" 94 (ulton Count- D ! 1442 (or :eorgia ca0e0" 0ee T 1%" in.ra 1ll /eo>le e) rel. 2inc?le- v
/ir.en<rin? @1$79; 9* 1ll *$ @recogniGing rule; E) >arte Smith @1$$*; 117 1ll *3" 7 NE *$3
@recogniGing rule; 6e0ter v Ber?o=itG @1$$$; 12% 1ll 3+7" 17 NE 7+* @recogniGing rule; /eo>le v
:il<ert @1917; 2$1 1ll *19" 11$ NE 19* 2ill v &homa0 B. He..er- Co. @192+; 292 1ll 49+" 127 NE 124
/eo>le e) rel. ,ndre=0 v 2a00a?i0 @19%%; * 1ll 2d 4*3" 129 NE2d 9 But 0ee /eo>le e) rel. :eneral
4otor0 Cor>. v Bua @19*7; 37 1ll 2d 1$+" 22* NE2d *" in.ra. ,nd 0ee 1llinoi0 ca0e0 limiting revie= to
Cue0tion o. a<u0e o. di0cretion" T 13" in.ra. 8a0te 4anagement" 1nc. v 1nternational Sur>lu0 6ine0
1n0. Co. @1991; 144 1ll 2d 17$" 1*1 1ll Dec 774" %79 NE2d 322 ,lmgren v !u0hZ/re0<-terianZSt.
6u?eA0 4edical Ctr. @1994; 1*2 1ll 2d 2+%" 2+% 1ll Dec 147" *42 NE2d 12*4" mod and reh den @Nov
1%" 1994; !o<in0on v /eo>le @19+*; 129 1ll ,>> %27 Pell- v Chicago" B. U S. !. Co. @1919; 213 1ll
,>> 29* @recogniGing rule; /eo>le e) rel. !u0ch v Pirgi0 @193*; 2$7 1ll ,>> 37$" 4 NE2d $94
&egtme-er v &egtme-er @1937; 292 1ll ,>> 434" 11 NE2d *%7 @recogniGing rule; /eo>le e) rel.
!u0ch v (erro @1942; 313 1ll ,>> 2+2" 39 NE2d 7+7 Pemen- v S?orch @19%9; 22 1ll ,>> 2d 1*+" 1%9
NE2d 4$9 4a-=ood v Hac?0on @19*3; 42 1ll ,>> 2d 29" 19+ NE2d %93 Poch v 4ettler @19*4; 49 1ll
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,>> 2d 2%1" 199 NE2d 417 !e 3cto<er 19$% :rand Hur- @19$7" 10t Di0t; 1%4 1ll ,>> 3d 2$$" 1+7 1ll
Dec 342" %+7 33 ,.6.!.3d 44$ /age 179 33 ,.6.!.3d 44$ @3riginall- >u<li0hed in 197+; NE2d *"
a>> gr @1ll; 113 1ll Dec 3+4" %1% NE2d 113 and vacated on other ground0 @19$$; 124 1ll 2d 4**" 12%
1ll Dec 29%" %3+ NE2d 4%3 !e 4arriage o. !-an @19$9" 2d Di0t; 1$$ 1ll ,>> 3d *79" 13* 1ll Dec 1"
%44 NE2d 4%4 &e0tin v Dre-er 4edical Clinic @1992; 23$ 1ll ,>> 3d $$3" 179 1ll Dec %*" *+% NE2d
1+7+" a>> gr 149 1ll 2d **1" 1$3 1ll Dec $72" *12 NE2d %24 1n re 4arriage o. Dieter @199%" 10t Di0t;
271 1ll ,>> 3d 1$1" 2+7 1ll Dec $4$" *4$ NE2d 3+4 /eo>le e) rel. 2a=thorne v 2amilton" 9 1ll ,>>
3d %%1" 292 NE2d %*3 4d Drone- v Drone- @199%; 1+2 4d ,>> *72" *%1 ,2d 41% 4ich /eo>le e)
rel. /ort 2uron U :. !. Co. v Hone0 @1$7*; 33 4ich 3+3 2aine0 v 2aine0 @1$7*; 3% 4ich 13$ !e
Bi00ell @1$79; 4+ 4ich *3 @recogniGing rule; !o00 v !o00 @1$$1; 47 4ich 1$%" 1+ N8 193 See
/eo>le v Den 5-l @1949; 323 4ich 49+" 3% N82d 4*7. But 0ee 4ichigan ca0e0 limiting revie= to
Cue0tion o. a<u0e o. di0cretion" T 13" in.ra. 4inn (or 4inne0ota ca0e0" 0ee T $MaN" 0u>ra 4i00 (or
4i00i00i>>i ca0e0" 0ee T 1%" in.ra 4o (or 4i00ouri ca0e0" 0ee T 3M<N" 0u>ra Ne< Dunning v &allman
@1993; 244 Ne< 1" %+4 N82d $% N7 8atrou0 v Pearne- @1$$+; 79 N7 49* @recogniGing rule;
Strong v 8e0tern :a0 U (uel Co. @19+4; 177 N7 4++" *9 NE 721 @recogniGing rule; Ping v ,0hle-
@19+4; 179 N7 2$1" 72 NE 1+* !e 2a-=ard @1$99; 44 ,>> Div 2*%" *+ N7S *3* @recogniGing rule;
4oore v 4oore @191+; 141 ,>> Div %32" 12* N7S 412 !e Ba?er @1$%%; 11 2o= /r 41$
@recogniGing rule;9 !e /erc- @1$*$; 2 Dal- %3+ @recogniGing rule;9 !ichie v Bedell @1$$%" Su>; 22
N7 8ee? Dig %*39 (inc? v 4annering @1$$7; 4* 2un 3239 !e ,non-mou0 @1$$7; 1$ ,<< NC 21*
@recogniGing rule;9 33 ,.6.!.3d 44$ /age 1$+ 33 ,.6.!.3d 44$ @3riginall- >u<li0hed in 197+;
/eo>le e) rel. /o0t v :rant @1$$$; 13 N7 Civ /roc 3+%" revd on merit0 %+ 2un 243" 3 N7S 142
@recogniGing rule;9 Boon v 4c:uc?en @1$93; *7 2un 2%1" 22 N7S 4249 !e De 6ong @1$9*; 2% Civ
/roc 3*3" 41 N7S 2+19 Siegel v Solomon @19+%" Su> ,>> &; 92 N7S 23$ @recogniGing rule;.
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4cCredie v Senior @1$34; 4 /aige 37$ But 0ee 4itchellA0 Ca0e @1$*1; 12 ,<< /r 249. ND State v.
Zahn" 1997 ND *%" %*2 N.8.2d 737 @N.D. 1997; 3hio (or 3hio ca0e0" 0ee T 1%" in.ra /a Scranton v
/eo>leA0 Coal Co. @1922; 274 /a *3" 117 , *73 State :rand 6odge v 4orri0on @1923; 277 /a 41" 12+
, 7*9 @recogniGing rule; !e ,ung0t @19*3; 411 /a %9%" 192 ,2d 723 @recogniGing rule; !e 4-er0 U
Brei @1924; $3 /a Su>er 3$3 ,>>eal o. !ea> @192*; $$ /a Su>er 147 @recogniGing rule;
Common=ealth v 4orri0e- @1942; 1%+ /a Su>er 2+2" 27 ,2d 44* De4a0i v De4a0i @1991" /a
Su>er; %97 ,2d 1+1 Common=ealth e) rel. Ziccardi v 2endric?0 @19*4; 33 /a D U C2d 419
@recogniGing rule; But 0ee /enn0-lvania ca0e0 limiting revie= to Cue0tion o. a<u0e o. di0cretion" T 13"
in.ra. SC (or South Carolina ca0e0" 0ee T 13" in.ra 5tah Smith v Pim<all @193+; 7* 5tah 3%+" 2$9 /
%$$" 7+ ,6! 1+1 @recogniGing rule; #t But 0ee #ila0 v Burton @1$%4; 27 #t %*. !e Con0olidated
!endering Co. @19+7; $+ #t %%" ** , 79+" a..d 2+7 5S %41" %2 6 Ed 327" 2$ S Ct 17$ @a>>arentl-
recogniGing rule; Cutting v Cutting @192$; 1+1 #t 3$1" 143 , *7* @recogniGing rule; Socon- 4o<ile
3il Co. v 4a00ena 1ron U 4etal Co. @19**; 12% #t 4+3" 217 ,2d %* #a Street v. Street" 24 #a. ,>>.
14" 4$+ S.E.2d 11$ @1997; 33 ,.6.!.3d 44$ /age 1$1 33 ,.6.!.3d 44$ @3riginall- >u<li0hed in
197+; (or #irginia ca0e0" 0ee T 1%" in.ra , Budgment o. contem>t .or >u<li0hing in a ne=0>a>er an
article critical o. the Budge in a >ending ca0e =a0 held revie=a<le <- =rit o. error" in /eo>le v :il<ert
@1917; 2$1 1ll *19" 11$ NE 19*. &he court 0aid that =hile the court again0t =hich the alleged
contem>tuou0 matter i0 >u<li0hed >a00e0 on the Cue0tion =hether or not the >u<li0hed matter i0
actuall- contem>tuou0" -et the deci0ion o. that court i0 not conclu0ive: a =rit o. error ma- <e 0ued out
to revie= the Budgment o. the lo=er court. ,n order o. commitment .or contem>t o. court .or
re.u0ing to give a de>o0ition =a0 held to <e a .inal" a>>eala<le order" in 2ill v &homa0 B. He..er- Co.
@192+; 292 1ll 49+" 127 NE 124. &he court 0aid that the order o. commitment <- the 0u>erior court
=a0 a .inal Budgment in the ancillar- >roceeding that =a0 <rought to en.orce the interlocutor- order
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directing the >lainti.. to a>>ear and te0ti.-. 8hile the >ur>o0e o. that >roceeding =a0 connected =ith
and had it0 .oundation in the main ca0e" rea0oned the court" it =a0 a 0e>arate ca0e >ro0ecuted
inde>endentl- to en.orce a com>liance =ith the order o. the court. &he court 0aid that =hether that
order to te0ti.- =a0 interlocutor- or .inal =a0 immaterial: i. it =a0 la=.ull- made it =a0 the >lainti..A0
dut- to o<e- it" and a Budgment either that he =a0 guilt- o. contem>t or that he =a0 not =a0 a .inal
Budgment. See" ho=ever" /eo>le e) rel. :eneral 4otor0 Cor>. v Bua @19*7; 37 1ll 2d 1$+" 22* NE2d
*" =here the court 0aid that =hile ordinaril- a contem>t adBudication i0 a .inal and a>>eala<le order"
thi0 rule =ould not <e .ollo=ed =here" in0tead o. the traditional .ine or im>ri0onment a0 >uni0hment
.or contem>t" the de.endant held in contem>t =a0 >uni0hed <- having it0 an0=er to the amended
com>laint 0tric?en and Budgment entered again0t it. &he contem>t =a0 adBudged .or .ailure to com>l-
=ith >retrial di0cover- order0" and =hile the court determined that the 0tri?ing o. >leading0 and the
entr- o. a de.ault Budgment =a0 >ermi00i<le a0 a 0anction .or the non>roduction o. document0 under a
court rule authoriGed <- the legi0lature" the court held that thi0 could not <e u0ed to render an
interlocutor- order .inal and a>>eala<le <- the u0e o. contem>t language. &he im>o0ition o. a .ine or
im>ri0onment a0 a 0anction .or contem>t i0 .inal and a>>eala<le <ecau0e it i0 an original 0>ecial
>roceeding" collateral to and inde>endent o. the ca0e in =hich the contem>t ari0e0" e)>lained the
court" <ut the 0anction im>o0ed in thi0 ca0e did not directl- a..ect the outcome o. the >rinci>al action.
&here.ore the court concluded that 0ince the contem>t order" in e..ect" determined lia<ilit- =ithout a
determination o. damage0" it =a0 not -et .inal and a>>eala<le. 8hile recogniGing the right to a>>eal"
the court in /eo>le v Den 5-l @1949; 323 4ich 49+" 3% N82d 4*7" in con0idering an a>>eal .rom
one con.ined .or contem>t in re.u0ing to an0=er certain Cue0tion0 <e.ore an e)amining magi0trate"
ruled that the di0mi00al o. the >rinci>al ca0e @<ecau0e the >ro0ecution could not >roceed =ithout the
=itne00A te0timon-; a<ated the contem>t >roceeding and reCuired the di0mi00al o. the a>>eal. &he
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court" ho=ever" in the order di0mi00ing the a>>eal" al0o di0mi00ed the =arrant o. commitment under
=hich the =itne00 =a0 con.ined. , chancer- decree adBudging a cor>oration to <e in contem>t o.
court .or di0o<e-ing a court order =a0 held a>>eala<le in Socon- 4o<il 3il Co. v 4a00ena 1ron U
4etal Co. @19**; 12% #t 4+3" 217 ,2d %*" on the authorit- o. an earlier ca0eM2N that di..ered .rom the
ca0e at <ar onl- <ecau0e it originated in the Count- Court rather than the Court o. Chancer-" and that
=a0 held to <e >ro>erl- tran0.erred to the Su>reme Court <- =a- o. a <ill o. e)ce>tion0. ,n' 33
,.6.!.3d 44$ /age 1$2 33 ,.6.!.3d 44$ @3riginall- >u<li0hed in 197+; other ca0e"M3N =hich held
that an a>>eal =ould not lie .rom the decree o. thechancellor in matter0 o. contem>t" =a0 relied u>on
to 0u>>ort a motion to di0mi00 the a>>eal" <ut the court" >ointing out that a 1941 0tatute >rovided that
cau0e0 heard in chancer- >a00 to the Su>reme Court in the 0ame manner a0 a>>eal0 .rom Count-
Court" 0aid that the e..ect o. thi0 legi0lation =a0 to a<oli0h a>>eal0 in chancer- a0 the- >reviou0l-
e)i0ted" and to 0u<0titute the 0tatute0 a>>lica<le to o<tain revie= o. Count- Court >roceeding0.
&here.ore" concluded the court" the #ila0 Ca0e >re0ented no o<0tacle to the >ending a>>eal.
C5456,&1#E S5//6E4EN& Ca0e0: &o o<tain a>>ellate revie=" 0u<>oenaed >art- mu0t de.-
di0trict courtA0 en.orcement order" <e held in contem>t" and then a>>eal contem>t order" =hich i0
regarded a0 .inal. D-neg- 4id0tream Service0 v. &rammochem" 4%1 (.3d $9 @2d Cir. 2++*;. 8here
0ecuritie0 trading cor>oration =a0 adBudged in contem>t .or .ailing to turn over ta>e recording a0
ordered <- court" court had Buri0diction to revie= contem>t order even though im>o0ition o. 0anction0
=a0 0ta-ed and no 0anction0 =ere .ormulated >rior to entr- o. 0ta-. !e &hree :rand Hur- Su<>oena0
@19$$" C,2 N7; $47 (2d 1+24. , di0trict courtA0 ruling on an a>>lication .or a contem>t order i0
revie=ed .or a<u0e o. di0cretion. (rontier'Pem>er Con0tructor0" 1nc. v. ,merican !oc? Salt Co." 224
(. Su>>. 2d %2+ @8.D. N.7. 2++2;. /o0t'Budgment order0 o. contem>t are =ithin an a>>ellate courtA0
Buri0diction a0 revie=a<le D.inal order0.D 2$ 5.S.C.,. T 1291. Berne Cor>. v. :overnment o. &he
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#irgin 10land0" %7+ (.3d 13+ @3d Cir. 2++9;. Court o. ,>>eal0 had Buri0diction o. de.endantA0 a>>eal
o. contem>t order" although contem>t order o. it0el. did not con0titute a .inal order that could <e
a>>ealed" =here >ortion o. order that included contem>t .inding =a0 com>lete and .inal. 4 U C
Cor>. v. Er=in Behr :m<2 U Co." 2$9 (ed. ,>>). 927 @*th Cir. 2++$;. 8hen the di0o<e-ed order
=ould <e inde>endentl- a>>eala<le under an e)ce>tion to the .inal' deci0ion rule" then the contem>t
citation al0o ma- <e a>>eala<le. S.E.C. v. 4cNamee" 4$1 (.3d 4%1" (ed. Sec. 6. !e>. @CC2; / 94172
@7th Cir. 2++7;. :rant or denial o. contem>t order i0 revie=ed .or a<u0e o. di0cretion" <ut order o.
contem>t i0 revie=ed more 0earchingl-. 5.S. v. &ee>le" 2$* (.3d 1+47" $9 ,.(.&.!.2d 2++2'21+2
@$th Cir. 2++2;. Contem>t adBudication i00ued in >o0tBudgment >ha0e o. civil action =a0 a>>eala<le
=hether contem>t =a0 con0idered to <e civil or criminal" 0ince adBudication >o00e00ed attri<ute0 o.
o>erativene00 and con0eCuence nece00ar- to a>>eala<ilit-. Con0umer0 :a0 U 3il" 1nc. v. (armland
1ndu0trie0" 1nc." $4 (.3d 3*7" 34 (ed. !. Serv. 3d 1%%+ @1+th Cir. 199*;. Denial o. motion .or order to
0ho= cau0e =h- >art- 0hould not <e held in contem>t i0 .inal" a>>eala<le order. &homa0 v. Blue
Cro00 and Blue Shield ,00An" %94 (.3d $14 @11th Cir. 2+1+;. , contem>t order i0 .inal and a>>eala<le
=hen the o>>ortunit- to >urge the contem>t ha0 >a00ed and the >o0ition o. the >artie0 ha0 <een
a..ected <- the contem>t order. Sei?o E>0on Cor>. v. NuZPote 1ntern." 1nc." 19+ (.3d 13*+" %2
5.S./.S.2d @BN,; 1+11 @(ed. Cir. 1999;" rehAg denied" in <anc 0ugge0tion declined" @3ct. 19" 1999;.
33 ,.6.!.3d 44$ /age 1$3 33 ,.6.!.3d 44$ @3riginall- >u<li0hed in 197+; , contem>t order i0 a
.inal" a>>eala<le order. &helman v. State" 37% ,r?. 11*" 2$9 S.8.3d 7* @2++$;. Contem>t Budgment
i0 revie=a<le .inal order. C.:.S.,. T %1Z33. State v. Bre0cia" 123 Conn. ,>>. 342" 1 ,.3d 114%
@2+1+;. ,>>ellate Court =ill rever0e a .inding o. contem>t onl- i. the Court conclude0 the trial court
a<u0ed it0 di0cretion. Do=d v. Do=d" 9* Conn. ,>>. 7%" $99 ,.2d 7* @2++*;. Even i. adBudication o.
contem>t =a0 con0idered .inal Budgment" court =a0 =ithout Buri0diction =here notice o. a>>eal =a0
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.iled more than a month <e.ore 0entencing. 8e0t v 5nited State0 @Di0t Col ,>>; 34* ,2d %+4. 3rder
o. .amil- court in matrimonial action determining cu0tod- o. children demanding 0u>>ort >a-ment0"
alloting >er0onal >ro>ert- and .inding >art- in contem>t .or violation o. >rior order =a0 .inal and
a>>eala<le" not=ith0tanding continuing Buri0diction o. .amil- court to modi.- order. Cleveland v
Cleveland @1977" 2a=aii; %%9 /2d 744. , contem>t order i0 a>>eala<le under the 0ame
circum0tance0 a0 another order or Budgment entered in a civil or criminal action. Callaghan v.
Callaghan" 142 1daho 1$%" 12% /.3d 1+*1 @2++%;. 5nder rule that revie= o. alread- i00ued contem>t
order mu0t <e <- =rit o. revie= or <- a>>eal" =rit o. >rohi<ition =a0 not >ro>er remed- <- =hich to
conte0t order .inding divorced =i.e in contem>t .or .ailure to grant vi0itation right0 to divorced
hu0<and. De- v Cunningham" 93 1daho *$4" 471 /2d 71. 3rdinaril-" adBudication in contem>t
>roceeding i0 .inal and a>>eala<le <ecau0e it i0 original 0>ecial >roceeding" collateral to" and
inde>endent o." ca0e in =hich contem>t ari0e0" =here im>o0ition o. 0anction doe0 not directl- a..ect
outcome o. >rinci>al action" even though 0uch adBudication doe0 not di0>o0e o. all i00ue0 in litigation.
Earle0 v. Earle0" 2$7 1ll. Dec. 4++" $1% N.E.2d 12+3 @,>>. Ct. 3d Di0t. 2++4;. 1t i0 a>>ro>riate .or a
>art- to reCue0t that a contem>t order <e entered again0t it 0o that >art- ma- 0ee? immediate a>>eal
o. a trial courtA0 di0cover- order. 8e<< v. 4ount Sinai 2o0>. and 4edical Center o. Chicago" 1nc."
2$3 1ll. Dec. 1$%" $+7 N.E.2d 1+2* @,>>. Ct. 10t Di0t. 2++4;. 8hen an individual a>>eal0 .rom a
contem>t 0anction im>o0ed .or violating" or threatening to violate" a di0cover- order" the contem>t
.inding i0 .inal and a>>eala<le and >re0ent0 to the revie=ing court the >ro>riet- o. that di0cover-
order. !eda v. ,dvocate 2ealth Care" 199 1ll. 2d 47" 2*2 1ll. Dec. 394" 7*% N.E.2d 1++2 @2++2;.
Hudgment o. contem>t again0t la= .irm .or violating order to =ithdra= a>>earance a.ter .irm =a0
di0Cuali.ied .rom re>re0enting de.endant con0tituted .inal and a>>eala<le Budgment and >re0ented to
court .or revie= >ro>riet- o. courtA0 order" even though 0ugge0tion that la= .irm re.u0e to =ithdra=
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came .rom trial Budge and underl-ing controver0- =a0 not certi.ied .or revie=. 1nde) (uture0 :rou>"
1nc. v Street @19$7" 10t Di0t; 1*3 1ll ,>> 3d *%4" 114 1ll Dec 73%" %1* NE2d $9+. &he Court o.
,>>eal0 =ill rever0e a trial courtA0 .inding o. contem>t onl- =here there i0 no evidence or in.erence0
.rom the record to 0u>>ort it. Deel v. Deel" 9+9 N.E.2d 1+2$ @1nd. Ct. ,>>. 2++9;. Contem>t
Budgment .or violation o. an order o. the court regarding child vi0itation =a0 .inal and there.ore
a>>eala<le. &hi<odeau) v. &hi<odeau)" 74$ So. 2d 11$+ @6a. Ct. ,>>. %th Cir. 1999;. 33 ,.6.!.3d
44$ /age 1$4 33 ,.6.!.3d 44$ @3riginall- >u<li0hed in 197+; 1nterlocutor- Budgment .inding e)Z
=i.e in contem>t and ordering her to >a- a .ine and attorne- .ee0 threatened irre>ara<le inBur-" and
thu0" direct a>>eal could <e ta?en. Duc?0=orth v. Duc?0=orth" 727 So. 2d 12%4 @6a. Ct. ,>>. 4th
Cir. 1999;. , >art- .ound in contem>t ha0 a right to a>>eal .rom that deci0ion even though the merit0
o. the litigation in =hich the contem>t order =a0 entered have not -et <een re0olved. 4orri0 v.
8alden" $%* So. 2d 7+% @4i00. Ct. ,>>. 2++3;. ,>>ellate court =ill not rever0e a contem>t citation
=here the chancellorA0 .inding0 are 0u>>orted <- 0u<0tantial credi<le evidence. :ood0on v. :ood0on"
$1* So. 2d 42+ @4i00. Ct. ,>>. 2++2;. ,lthough 0e>arate i00ue0 o. main >etition and contem>t =ere
addre00ed =ithin 0ame Budgment" each >ortion o. Budgment =a0 0e>aratel- a>>eala<le. S&6 Ca>ital
S: 1 =ould li?e to <ring a claim <ut am =orried a<out retaliation. 8hat 0hould 1 doE ,: !etaliation
.or 0ee?ing acce00 to the court0 or >rotecting -our civil right0 i0 it0el. a civil right0 violation. 5nder
0ome circum0tance0 -ou =ould <e entitled to immediate inBunctive relie. .rom the court0 to 0to> an-
hara00ment or retaliator- action.
4anagement" 66C v. Brda" 2+7 S.8.3d *49 @4o. Ct. ,>>. E.D. 2++*;.
8hile contem>t order0 generall- are .inal and not a>>eala<le" e)ce>tion e)i0t0 .or .amil-Z la= ca0e0"
in =hich a>>eal0 are >ermitted. 2eath v 2eath @199%" 4ont; 9+1 /2d %9+. ,lthough contem>tZo.Z
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court order0 i00ued <- Di0trict Court are .inal and u0uall- unrevie=a<le e)ce>t <- =a- o. =rit o.
certiorari or revie=" e)ce>tion e)i0t0 .or contem>t order0 made in di00olutionZo.Zmarriage
>roceeding0. 1n re 4arriage o. Bohar0?i @1993; 2%7 4ont 71" $47 /2d 7+9. ,n a>>ellate court"
revie=ing a .inal Budgment or order in a contem>t >roceeding" revie=0 .or error0 a>>earing on the
record. Dougla0 Count- e) rel. Dougla0 Count- ,00e00orA0 3..ice v. Po=al" 27+ Ne<. 9$2" 7+$
N.8.2d **$ @2++*;. ,>>ellate court" revie=ing .inal Budgment or order in contem>t >roceeding"
revie=0 .or error0 a>>earing on record. Plingin0mith v. 8ichmann" 2%2 Ne<. $$9" %*7 N.8.2d 172
@1997;. , contem>t order im>o0ing a >unitive 0anction i0 a .inal order and i0 revie=a<le on a>>eal.
4cDermott v. 4cDermott" $ Ne<. ,>>. $*+" *+2 N.8.2d *7* @1999;. 8hether the trial court adhered
to the reCui0ite >rocedure0 in a criminal contem>t >roceeding i0 a Cue0tion o. la=" =hich i0 revie=ed
de novo. 4ortgage S>eciali0t0" 1nc. v. Dave-" 9+4 ,.2d *%2 @N.2. 2++*;. , .inding o. contem>t"
com<ined =ith a 0anction .or contem>t" .orm0 a .inal a>>eala<le order. State v. ,dam0" 1%3 3hio
,>>. 3d 134" 2++3'3hio'3+$*" 791 N.E.2d 1+4% @7th Di0t. 2arri0on Count- 2++3;. , contem>t
>roceeding" even though it gro=0 out o. another >roceeding" i0 ordinaril- regarded a0 a collateral or
0e>arate action .rom the underl-ing ca0e and i0 0e>aratel- a>>eala<le" =ith a>>ellate revie= limited
to the contem>t order it0el.. 6erma v. 8al'4art Store0" 1nc." 2++* 3P $4" 14$ /.3d $$+ @3?la. 2++*;.
3rder o. contem>t i0 .inal and a>>eala<le =hen the order contain0 a >re0ent .inding o. contem>t and
im>o0e0 0anction0. 1n re C.8." 2++$ /, Su>er 2%4" 9*+ ,.2d 4%$ @2++$;. , contem>t order i0
a>>eala<le =here the order con0titute0 a .inal one that im>o0e0 0anction0 u>on the o..ending >art-.
&a?o0?- v. 2enning" 2++* /, Su>er 237" 9+* ,.2d 12%% @2++*;. Su>erior Court =ill rever0e trial
courtA0 determination a0 to contem>t conviction onl- =hen there ha0 <een >lain a<u0e o. di0cretion.
Com. v. 2aigh" 2++% /, Su>er 139" $74 ,.2d 1174 @2++%;" reargument denied" @Hune 17" 2++%;.
Contem>t order >reventing neigh<or0
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.rom u0ing >ro>ert- o=ner0A >ond =a0 immediatel- a>>eala<le9 it im>o0ed co0t o. <ond on
neigh<or0" and thi0 0anction could not <e >urged. 33 ,.6.!.3d 44$ /age 1$% 33 ,.6.!.3d 44$
@3riginall- >u<li0hed in 197+; 8olanin v. 2a0hagen" 2++3 /, Su>er 2%$" $29 ,.2d 331 @2++3;. 1n a
ca0e o. contem>t" the trial court ma- .ind a >art- in contem>t and that >art- ma- a>>eal the .inding o.
contem>t" <ut the >art- a0?ing .or the contem>t ma- not" a0 it i0 not aggrieved. Borough o. Slatington
v. Ziegler" $9+ ,.2d $ @/a. Comm=. Ct. 2++%;. Since a contem>t order i0 .inal in nature" an order
com>elling di0cover- ma- <e a>>ealed onl- a.ter a trial court hold0 a >art- in contem>t. &uc?er v.
2onda o. South Carolina 4.g." 1nc." %$2 S.E.2d 4+% @S.C. 2++3;. &he .inding o. contem>t i0
immediatel- a>>eala<le. E) >arte Cannon" *$% S.E.2d $14 @S.C. Ct. ,>>. 2++9;. Circuit courtA0
remed- or >uni0hment .or contem>t o. court i0 revie=ed under the a<u0e o. di0cretion 0tandard.
SaGama v. State e) rel. 4uilen<erg" 2++7 SD 17" 729 N.8.2d 33% @S.D. 2++7;. , trial courtA0 .inding
o. contem>t i0 revie=ed .or a<u0e o. di0cretion. State e) rel. (lo=er0 v. &enne00ee &ruc?ing ,00An
Sel. 1n0. :rou> &ru0t" 2+9 S.8.3d *+2 @&enn. Ct. ,>>. 2++*;" a>>eal denied" @3ct. 3+" 2++*;. , trial
courtA0 0entence .or contem>t" li?e the e)erci0e o. it0 contem>t >o=er" i0 revie=a<le .or a<u0e o.
di0cretion. State v. Clar?" 2++% 5& 7%" 124 /.3d 23% @5tah 2++%;. &rial court0 have di0cretion to
i00ue contem>t order0" and rever0al o. a contem>t Budgment i0 a>>ro>riate onl- i. the trial courtA0
di0cretion =a0 either totall- =ithheld or e)erci0ed on ground0 clearl- untena<le or unrea0ona<le. 1n re
Duc?man" $9$ ,.2d 734 @#t. 2++*;. ,n adBudication o. contem>t i0 a>>eala<le i. it i0 a .inal order or
Budgment9 i.e." the contumac-" the >art-A0 =ill.ul re0i0tance to the contem>t order" i0 e0ta<li0hed" and
the 0anction i0 a coercive one de0igned to com>el com>liance =ith the courtA0 order. !,/ 2.2@a;. 1n re
E0tate0 o. Smaldino" 212 /.3d %79 @8a0h. Ct. ,>>. Div. 1 2++9;. ,>>eal0 .rom contem>t order0 are
one'Budge a>>eal0. 8.S.,. 7%2.31@2;@h;. 1n re 8a0hington" 2++* 81 ,>> 99" 71* N.8.2d 17* @8i0.
Ct. ,>>. 2++*;.
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1 ?no= Hudge 2o=ard and Hudge Na0h 2olme0 are li?el- ver- u>0et =ith me. Both recentl- 0entenced
me to 0everal da-0 o. incarceration >ur0uant to a Summar- Contem>t Committed in the CourtA0 /re0ence .inding. (urther"
Hudge 2olme0 ha0 a>>arentl- had m- t=o cell >hone0 and >erha>0 0ome other material0 con.i0cated >ur0uant to the 0earch
incident to arre0t in connection =ith m- 0ummar- contem>t incarceration incident to the recent &rial in !4C tra..ic
citation matter 11 tr 2*$++ @tic?et num<er %442$1; =hich occurred at 1 >m (e<. 27th" 2+11 <e.ore Hudge 2olme0"
=herein !eno Cit- ,ttorne- 3rmaa0 =a0 re>re0enting the Cit- o. !eno.
&he Bail did not give me <ac? m- t=o cell >hone0 and other item0 o. >er0onal >ro>ert-..the- 0aid the !eno
4unici>al Court @!4C; con.i0cated tho0e item0 on 2O2$O12" though the- indicated that the- did not reCuire the !4C
@actuall- the !eno 4ar0halA0 divi0ion; to 0ho= a court order or =arrant >rior to 0o con.i0cating tho0e item0. ,>>arentl-
the- are holding the0e item0 >ur0uant to D>ro<a<le cau0eD" o. =hat 1 do not ?no=. Hudge Na0h 2olme0 0ua 0>onte
interrogated me in o>en court @0hortl- a.ter 1 >ointed out that 4ar0hal 2-lin and !eno Cit- ,ttorne- =ere =hi0>ering in
each otherA0 ear0 during the &rial here; a0 to =hether 1 =a0 recording the >roceeding. &he >roceeding0 are recorded a0 a
matter o. la= <- the court" and the >roceeding i0 an o>en hearing" >art o. the >u<lic record" 0o...1 am not 0ure =hat 0he
=a0 getting at" <ut...&he !eno 4ar0halA0 4ar0hal 2a-ne- @or 2ine-" not 0ure; and the !eno Cit- ,ttorne- 3rmaa0 =ere
0een =hi0>ering in each otherA0 ear0 during the hearing @1 noted that ver<all- into the record; and a.ter the hearing" =hile
4ar0hal 2a-ne- =a0 0earching me >ur0uant to m- <eing arre0ted @=hich =a0 odd given 1 =a0 in the >roce00 o. attem>ting
to >a- the alternate di0ci>line Hudge 2olme0 had o..ered" F%++" =hich =a0 0u>>o0ed to ena<le me to avoid 0erving the %
da-0 Bail time" then" .or 0ome rea0on" 1 =a0 denied the o>>ortunit- to ma?e 0uch a >a-ment rather a<ru>tl- and =ith great
te0to0terone and .ur- <- 4ar0hal 2-ne-;" he immediatel- 0tarted accu0ing me o. DrecordingD and told the other 4ar0halA0
to re>ort that 1 had <een doing 0o to the Hudge" Hudge Na0h 2olme0" <a0ed u>on nothing reaon0a<l- allo=ing him to
0u0>ect that or ma?e 0uch allegation0" >articularl- =here 4ar0hal 2ine- =a0 0till 0o u>0et that the under0igned ha0 dared
to Cue0tion him earlier that da-" immediatel- >rior to &rial" =ho gave 2ine- the Notice o. the 2earing on the 3rder to
Sho= cau0e in C#11'+3*2$ @another 0ituation involving the alleged tre0>a00 at i00ue here" the eviction in !HC !Ev2+11'
++17+$" and the tra..ic citation i00ued here;. 1t i0 Bun? .ood Bu0tice to 0ugge0t that none o. thi0 i0 DrelevantD to thi0 matter.
&he ca0e num<er in thi0 !4C tra..ic citation matter i0 11 tr 2*$++ !4C @tic?et num<er %442$1; and the &rial or
2earing occurred at 1 >m (e<. 27th <e.ore Hudge 2olme0
,<out 1+ da-0 ago 1 .iled an a>>lication .or a tem>orar- >rotection order again0t a !eno Hu0tice Court Baili..
named !e-e0. Baili.. !e-e0 had" on >ro<a<l- Novem<er 2$" 2+11 or 0o" told me he =a0 going to D>ut hi0 .oot u> -our
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a00D. 2e continued to <e menacing and aggre00ive to me and .inall- 1 .iled a >rotection order a<out 1+ da-0 ago. &o m-
?no=ledge" no deci0ion or hearing ha0 <een held on that >rotection order" and Paren Stancil" Chie. Civil Cler? =ith the
!HC in.ormed me it =a0 <eing tran0.erred to S>ar?0 Hu0tice Court @1 <elieve; do to the !HC having a con.lict. ,l0o" 1
re>orted to !HC Court ,dmini0trator &uttle another incident =herein Chie. Baili.. 4ichael Se)ton ha0 made menacing
commentar- to me regarding m- Da00D a0 =ell" t=ice during &han?0giving =ee? in the Civil Divi0ion (iling 3..ice.
Additional L!al Point" to Con"idr#
N!S 11$,.39+ 5nla=.ul removal or e)clu0ion o. tenant or =ill.ul interru>tion o. e00ential item0 or 0ervice09
>rocedure .or e)>edited relie.. 1. 1. the landlord unla=.ull- remove0 the tenant .rom the >remi0e0 or e)clude0 the tenant
<- <loc?ing or attem>ting to <loc? the tenantL0 entr- u>on the >remi0e0" =ill.ull- interru>t0 or cau0e0 or >ermit0 the
interru>tion o. an- e00ential item or 0ervice reCuired <- the rental agreement or thi0 cha>ter or other=i0e recover0
>o00e00ion o. the d=elling unit in violation o. N!S 11$,.4$+" the tenant ma- recover immediate >o00e00ion >ur0uant to
0u<0ection 4" >roceed under N!S 11$,.3$+ or terminate the rental agreement and" in addition to another remed-"
recover the tenantL0 actual damage0" receive an amount not greater than F2"%++ to <e .i)ed <- the court" or <oth. 2. 1n
determining the amount" i. an-" to <e a=arded under 0u<0ection 1" the court 0hall con0ider: @a; 8hether the landlord acted
in good .aith9 @<; &he cour0e o. conduct <et=een the landlord and the tenant9 and @c; &he degree o. harm to the tenant
cau0ed <- the landlordL0 conduct. 3. 1. the rental agreement i0 terminated >ur0uant to 0u<0ection 1" the landlord 0hall
return all >re>aid rent and 0ecurit- recovera<le under thi0 cha>ter. 4. E)ce>t a0 other=i0e >rovided in 0u<0ection %" the
tenant ma- recover immediate >o00e00ion o. the >remi0e0 .rom the landlord <- .iling a veri.ied com>laint .or e)>edited
relie. .or the unla=.ul removal or e)clu0ion o. the tenant .rom the >remi0e0" the =ill.ul interru>tion o. an- e00ential item
or 0ervice or the recover- o. >o00e00ion o. the d=elling unit in violation o. N!S 11$,.4$+. %. , veri.ied com>laint .or
e)>edited relie.: @a; 4u0t <e .iled =ith the court =ithin % Budicial da-0 a.ter the date o. the unla=.ul act <- the landlord"
and the veri.ied com>laint mu0t <e di0mi00ed i. it i0 not timel- .iled. 1. the veri.ied com>laint .or e)>edited relie. i0
di0mi00ed >ur0uant to thi0 >aragra>h" the tenant retain0 the right to >ur0ue all other availa<le remedie0 again0t the
landlord. @<; 4a- not <e .iled =ith the court i. an action .or 0ummar- eviction or unla=.ul detainer i0 alread- >ending
<et=een the landlord and tenant" <ut the tenant ma- 0ee? 0imilar relie. <e.ore the Budge >re0iding over the >ending action.
*. &he court 0hall conduct a hearing on the veri.ied com>laint .or e)>edited relie. not later than 3 Budicial da-0 a.ter the
.iling o. the veri.ied com>laint .or e)>edited relie.. Be.ore or at the 0cheduled hearing" the tenant mu0t >rovide >roo. that
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the landlord ha0 <een >ro>erl- 0erved =ith a co>- o. the veri.ied com>laint .or e)>edited relie.. 5>on the hearing" i. it i0
determined that the landlord ha0 violated an- o. the >rovi0ion0 o. 0u<0ection 1" the court ma-: @a; 3rder the landlord to
re0tore to the tenant the >remi0e0 or e00ential item0 or 0ervice0" or <oth9 @<; ,=ard damage0 >ur0uant to 0u<0ection 19 and
@c; EnBoin the landlord .rom violating the >rovi0ion0 o. 0u<0ection 1 and" i. the circum0tance0 0o =arrant" hold the
landlord in contem>t o. court. 7. &he >a-ment o. all co0t0 and o..icial .ee0 mu0t <e de.erred .or an- tenant =ho .ile0 a
veri.ied com>laint .or e)>edited relie.. ,.ter an- hearing and not later than .inal di0>o0ition o. the .iling or order" the
court 0hall a00e00 the co0t0 and .ee0 again0t the >art- that doe0 not >revail" e)ce>t that the court ma- reduce them or =aive
them" a0 Bu0tice ma- reCuire.
NRS $$%A&'() Unla*f+l r,o-al or ./l+"ion of tnant or *illf+l intrr+0tion of
""ntial it," or "r-i/"; 0ro/d+r for .0ditd rlif& D1. 1. the landlord unla=.ull-
remove0 the tenant .rom the >remi0e0 or e)clude0 the tenant <- <loc?ing or attem>ting to
<loc? the tenantL0 entr- u>on the >remi0e0" =ill.ull- interru>t0 or cau0e0 or >ermit0 the
interru>tion o. an- e00ential item or 0ervice reCuired <- the rental agreement or thi0 cha>ter
or other=i0e recover0 >o00e00ion o. the d=elling unit in violation o. N!S 11$,.4$+" the
tenant ma- recover immediate >o00e00ion >ur0uant to 0u<0ection 4" >roceed under N!S
11$,.3$+...4. E)ce>t a0 other=i0e >rovided in 0u<0ection %" the tenant ma- recover
immediate >o00e00ion o. the >remi0e0 .rom the landlord <- .iling a veri.ied com>laint .or
e)>edited relie. .or the unla=.ul removal or e)clu0ion o. the tenant .rom the >remi0e0" the
=ill.ul interru>tion o. an- e00ential item or 0ervice or the recover- o. >o00e00ion o. the
d=elling unit in violation o. N!S 11$,.4$+. %. , veri.ied com>laint .or e)>edited relie.:
@a; 4u0t <e .iled =ith the court =ithin % Budicial da-0 a.ter the date o. the unla=.ul act <-
the landlord" and the veri.ied com>laint mu0t <e di0mi00ed i. it i0 not timel- .iled. 1. the
veri.ied com>laint .or e)>edited relie. i0 di0mi00ed >ur0uant to thi0 >aragra>h" the tenant
retain0 the right to >ur0ue all other availa<le remedie0 again0t the landlord. @<; 4a- not <e
.iled =ith the court i. an action .or 0ummar- eviction or unla=.ul detainer i0 alread-
>ending <et=een the landlord and tenant" <ut the tenant ma- 0ee? 0imilar relie. <e.ore the
Budge >re0iding over the >ending action. *. &he court 0hall conduct a hearing on the
veri.ied com>laint .or e)>edited relie. not later than 3 Budicial da-0 a.ter the .iling o. the
veri.ied com>laint .or e)>edited relie.. Be.ore or at the 0cheduled hearing" the tenant mu0t
>rovide >roo. that the landlord ha0 <een >ro>erl- 0erved =ith a co>- o. the veri.ied
com>laint .or e)>edited relie.. 5>on the hearing" i. it i0 determined that the landlord ha0
violated an- o. the >rovi0ion0 o. 0u<0ection 1" the court ma-: @a; 3rder the landlord to
re0tore to the tenant the >remi0e0 or e00ential item0 or 0ervice0" or <oth9 @<; ,=ard damage0
>ur0uant to 0u<0ection 19 and @c; EnBoin the landlord .rom violating the >rovi0ion0 o.
0u<0ection 1 and" i. the circum0tance0 0o =arrant" hold the landlord in contem>t o. court. D
(urther" NRS $$%A&1%) Landlord2" r/o-r3 of 0o""""ion of d*llin! +nit# D&he
landlord 0hall not recover or ta?e >o00e00ion o. the d=elling unit <- action or other=i0e"
including =ill.ul diminution or interru>tion or cau0ing or >ermitting the diminution or
interru>tion o. an- e00ential item or 0ervice reCuired <- the rental agreement or thi0
cha>ter" e)ce>t: 1. B- an action .or >o00e00ion or other civil action or 0ummar- >roceeding
in =hich the i00ue o. right o. >o00e00ion i0 determined9 2. 8hen the tenant ha0 0urrendered
>o00e00ion o. the d=elling unit to the landlord9 or 3. 8hen the tenant ha0 a<andoned the
d=elling unit a0 >rovided in N!S 11$,.4%+D
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N!S 11$,.4$+ come0 into >la- i. the landlord did ta?e Drecover- o. >o00e00ionD o. m- .ormer home la= o..ice
at 121 !iver !oc? St. >rior to <eing legall- allo=ed to do 0o. &o anal-Ge thi0" one mu0t ?no= =hat t->e o. 0ervice o.
the 3rder o. Summar- Eviction i0 reCuired. &hi0 <eing a civil matter" the Drendition o. Budgment or orderD or
DrenderedD language one .ind0 in criminal 0tatute0 li?e N!S 1$9.+1+ @=herein the deadline .or .iling a Notice o.
,>>eal .rom a criminal conviction i0 0et .orth; i0 ina>>lica<le. &hat <eing 0aid" and a0 e)>licitl- 0et .orth in N!S
, letter .rom the 8a0hoe Count- Sheri..A0 3..ice @8CS3; Civil Divi0ionA0 6iG Stuchell >rovide0 0ome in0ight a0 to
=hether the loc?out that too? >lace on Novem<er 1" 2+11 in thi0 ca0e =a0 >ermi00i<le.
DSu<Bect: !E: 8CS3 De>ut- 4achemA0 D>er0onall- 0ervedD ,..idavit o. 11O1O2+11
Date: &ue" 7 (e< 2+12 11:4+:39 '+$++
(rom: 6Stuchell[=a0hoecount-.u0
&o: Gachcoughlin[hotmail.com
CC: m?andara0[da.=a0hoecount-.u0
4r. Coughlin"
3ur record0 indicate that the eviction conducted on that da- =a0 >er0onall-
0erved <- De>ut- 4achen <- >o0ting a co>- o. the 3rder to the re0idence. &he re0idence
=a0 unoccu>ied at the time.
6iG Stuchell" Su>ervi0or 8CS3 Civil SectionD
/ut 0im>l-" the Novem<er 1" 2+11 loc?out" .or =hich 8CS3 De>ut- 4achem indicate0 he D>er0onall- 0ervedD
the 3rder o. Summar- Eviction" =a0 not la=.ull- conducted" and a0 0uch i0 ine..ective and invo?e0 the >rovi0ion o.
N!S 11$,.4$+. 8hen con0idering that the tenant did .ile 0uch a com>laint .or illegal loc?out" and the .act that the
!HC .ailed to rule on tenant0 .iling @and a good deal o. other 0uch .iling0 <- the tenant have langui0hed in the !HC
unruled on de0>ite reCue0t0 .or 0u<mi00ion <eing 0u<mitted...;" the current criminal tre0>a00 >roceeding in the !4C in
11 C! 2*4+% and the 2earing on the 3rder to Sho= Cau0e currentl- 0et .or 4arch 23rd at 11:++ am in De>artment 7 in
C#11'+3*2$" the a>>eal .rom the eviction matter involving !ichard :. 2ill" E0C. in !HC !ev2+11'++17+$.
&hi0 =hole <u0ine00 a<out I&he court ma- thereu>on i00ue an order directing the 0heri.. or con0ta<le o. the
count- to remove the tenant =ithin 24 hour0 a.ter recei>t o. the order...J i0 ina>>lica<le to thi0 0ituation" =here an
3rder :ranting Summar- Eviction =a0 0igned <- 3cto<er 27th" 2+11. &hat language i0 onl- .ound in 0ituation0
ina>>lica<le to the current one. N!S 4+.2%3@3;@<;@2;" and N!S 4+.2%3@%;@a; are the onl- 0ection0 o. N!S 4+ =here thi0
I=ithin 24 hour0J language occur0" and tho0e 0ituation0 onl- a>>l- =here" in:
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4+.2%3@3;@<;@2;: I 3. , notice 0erved >ur0uant to 0u<0ection 1 or 2 mu0t: ...@<; ,dvi0e the tenant: \. @2; &hat i. the court
determine0 that the tenant i0 guilt- o. an unla=.ul detainer" the court ma- i00ue a 0ummar- order .or removal o. the tenant
or an order >roviding .or the nonadmittance o. the tenant" directing the 0heri.. or con0ta<le o. the count- to remove the
tenant =ithin 24 hour0 a.ter recei>t o. the orderJ
and"
4+.2%3@%;@a;: I%. 5>on noncom>liance =ith the notice: @a; &he landlord or the landlordL0 agent ma- a>>l- <- a..idavit o.
com>laint .or eviction to the Bu0tice court o. the to=n0hi> in =hich the d=elling" a>artment" mo<ile home or commercial
>remi0e0 are located or to the di0trict court o. the count- in =hich the d=elling" a>artment" mo<ile home or commercial
>remi0e0 are located" =hichever ha0 Buri0diction over the matter. &he court ma- thereu>on i00ue an order directing the
0heri.. or con0ta<le o. the count- to remove the tenant =ithin 24 hour0 a.ter recei>t o. the order.J &he =a- the0e 0ummar-
eviction >roceeding0 are <eing carried out in !eno Hu0tice Court >re0entl- 0hoc?0 the con0cience and violate0 Nevada
la=. &here i0 not <a0i0 .or e..ectuating a loc?out the =a- 8CS3A0 De>ut- 4achem did in thi0 ca0e. &he a<ove t=o
0ection0 containing the I=ithin 24 hour0 o. recei>tJ language are ina>>lica<le" a0 tho0e 0ituation0 do not invo?e the
>re0ent circum0tance0" =here the &enant did .ile an ,..idavit and did conte0t thi0 matter to a degree not o.ten 0een. &o
reCuire NevadaA0 tenant0 to get u> and get out I=ithin 24 hour0J o. Irecei>t o. the orderJ @=hat doe0 that even meanE &he
u0e o. term0 li?e IrenditionJ" IrenderedJ" Inotice o. entr-J" I>ronouncedJ" i0 a<0ent here" and thi0 Irecei>t o. the orderJ
language i0 0omething rarel- .ound el0e=here in Nevada la='0ee attached D4# 0tatutor- citation0" and in em>lo-ment
la= litigation0 =here one mu0t .ile a Com>laint =ithin 9+ da-0 o. Irecei>tJ o. a !ight &o Sue 6etter" a 0ituation =hich
.ollo=0 N!C/ %@<;" and N!C/ *@e; in im>uting recei>t o. 0uch a letter" =hen actual recei>t i0 not 0ho=n" <- a>>l-ing a
Icon0tructive noticeJ 0tandard that relie0 u>on the da-0 .or mailing e)ten0ion o. time .or item0 0erved in the mailing"
etc.;. 1n ,<raham v. 8ood0 2ole 3ceanogra>hic 1n0titute" %%3 (.3d 114 @10t Cir. 2++9;" the record did not re.lect =hen
the >lainti.. received hi0 right'to'0ue letter. &he letter =a0 i00ued on Novem<er 24" 2++*. &he court calculated that the 9+'
da- >eriod commenced on Novem<er 3+" 2++*" <a0ed on three da-0 .or mailing a.ter e)cluding Saturda-0 and Sunda-0.
1n order to <ring a claim under either &itle #11 or the ,D," a >lainti.. mu0t e)hau0t admini0trative remedie0 and 0ue
=ithin 9+ da-0 o. recei>t o. a right to 0ue letter. See 42 5.S.C. T 2+++e'%@.;@1;. See Bald=in Count- 8elcome Center v.
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Bro=n" 4** 5.S. 147" 14$ n.1" 1+4 S.Ct. 1723" $+ 6.Ed.2d 19* @19$4;@granting >lainti.. an additional three da-0 .or
mailing >ur0uant to !ule *;....J ...
htt>:OOen.=i?i>edia.orgO=i?iOServiceWo.W>roce00
DSu<0tituted 0ervice: 8hen an individual >art- to <e 0erved i0 unavaila<le .or >er0onal
0ervice" man- Buri0diction0 allo= .or 0u<0tituted 0ervice. Su<0tituted 0ervice allo=0 the
>roce00 0erver to leave 0ervice document0 =ith another re0>on0i<le individual" called a
>er0on o. 0uita<le age and di0cretion" 0uch a0 a coha<iting adult or a teenager. 5nder
the (ederal !ule0" 0u<0tituted 0ervice ma- onl- <e made at the a<ode or d=elling o. the
de.endant.M4N Cali.ornia" Ne= 7or?"M%N 1llinoi0" and man- other 5nited State0
Buri0diction0 reCuire that in addition to 0u<0tituted 0ervice" the document0 <e mailed to
the reci>ient.M%N Su<0tituted 0ervice o.ten reCuire0 a 0erving >art- 0ho= that ordinar-
0ervice i0 im>ractica<le" that due diligence ha0 <een made to attem>t to ma?e >er0onal
0ervice <- deliver-" and that 0u<0tituted 0ervice =ill reach the >art- and e..ect notice.
M%ND
1 am >rett- 0ure D>er0onall- 0ervedD mean0 -ou 0erved the >er0on in >er0on" not that a >er0on @or 8CS3
De>utee; =ent and >o0ted a notice on a door" >er0onall- him0el.. See" 1 thin? the 8CS3 are thin?ing o. the D>er0onD in
the =ord >er0onall- a0 a>>l-ing to the 0erver" =hen in all in0tance0 1 have ever 0een it u0ed in the la=" the D>er0onD >art
o. D>er0onall-D a>>lie0 to the >er0on <eing 0erved. (urther adding con.u0ion here i0 the .act that 0ome" including tho0e
in the !HC Civil Divi0ion (iling 3..ice 0eem to <elieve that the I=ithin 24 hour0J o. Irecei>t o. the orderJ mentioned
.or 0erving an 3rder .or Summar- Eviction @onl- =here the tenant did not .ile a &enantA0 ,n0=er" 0o...not li?e in the
in0tant ca0e; reCuire0 the 8CS3 to e..ect the loc?out =ithin 24 hour0 o. the 8CS3 receiving the loc?out
3rder...other=i0e 0uch an 3rder =ould <ecome staleE
1t i0 not 0o rare a gi.t to <e a<le to tear 0omeone do=n" to >uni0h" to 0care" to con.i0cate. 2o=ever" it i0 trul- a
=ondrou0 0ite to 0ee one =ith the >o=er to reha<ilitate a lo0t cau0e" and one da- ma?e that lo0t cau0e u0e.ul to another
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human <eing. , >o=er 0een in e0teemed Nevada 6a=-er0 and Hudge0" and legal >ro.e00ional0 li?e Coe " Peith " &om"
/aul " Chuc?" Bo<" Pell-" 4icheal" Pim" Ben" and 0o man- other0 @and the under0igned .eel0 remi00 at not having a
.emale name to mention among0t tho0e Bu0t cited to;. &here ha0 <een >lent- o. >uni0hment here alread-" .amil-
relation0hi>0 have <een tore u> and <arel- remain on li.e 0u>>ort. &he !eno Cit- ,ttorne- could >ro<a<l- get <-
=ithout <loodletting another F17% and 4 >oint0 .rom the under0igned. 8h- Sargent &arter mu0t <e 0u<Bected to thi0
cro00 e)amination i0 unclear" one =ould thin? the !eno Cit- ,ttorne- =ould ho>e to avoid it <- 0ome mean0 other
than" 0eemingl-" rel-ing on the !4C to gerr-mander the relevanc- i00ue0 here to hel> Sargent &arter" et al to avoid
an0=ering an- uncom.orta<le Cue0tion0. 1t i0 0im>l- tac? .or CourtA0 to 0ua 0>onte cro00 e)amine de.endant0 an or
=itne00e0 on <ehal. o. >ro0ecutor0" >articularl- =here 1 canAt even one time recall 0eeing it done the other =a-.
2o=ever" to tho0e =ho =ould Budge or a00ert 0ome D0>ecial treatmentD i0 <eing 0ought" a0? -our0el. =hether
-ou <rought home =ith -ou over the la0t 3+ -ear0 ever-oneA0 overdo0ing on methadone" or =al?ing out o. oneA0 o..ice
a.ter ma?ing ever- a00urance that 0uicide =a0 not at all a >o00i<ilit- onl- to reveal that" indeed it =a0" or have countle00
=ee?end0 and vacation0 involve >hone call0 concerning =hether a >atient i0 D.ull codeD or Dno codeD...7ou <ring that
home =ith -ou .or 3+ -ear0 and tell me =hat 0ort o. com>en0ation i0 a>>ro>riate and then com>are it to the managed
care era .amil- >h-0icianA0 and then =e can di0cu00 D0>ecial treatmentD. ,nd -ou do that =ithout a drin? in 3+ -ear0
and then -ou can tal?. But all thi0 D0>ecial treatmentD di0cu00ion 0eem0 a <it 0trained =hen di0cu00ing =hether !ichard
:. 2ill com.ort level nece00itate0 e)acting even more mone- out o. me =hen it ought <e .airl- o<viou0 that 1 am doing
ever-thing 1 >o00i<l- can to" <uc?et <- <uc?et" remove the =ater >ooling at the <ottom o. m- tin-" one >er0on canoe.
,nd =here thi0 involve0 a rugged" tall" 23 -ear veteran Sargent o. the !eno /D =ith >ale <lue e-e0 =ho ha0 dou<tle00
earned the com>en0ation he no= garner0" >erha>0 the !eno Cit- ,ttorne- =ould <e =i0e to Bu0t let the tra..ic tic?et go.
3r" >erha>0" not" given the econom- =e are all 0truggling =ith e)act0 it0 .orce0 u>on the Budgment o. the !eno Cit-
,ttorne-A0 3..ice a0 =ell" and the- didnAt get =here the- are <- <eing light=eight0 or lac?ing in di0cretion or valor.
4a-<e the <e0t thing =ould <e to Bu0t hit the >au0e <utton .or a =hile and 0ee =hether the >er0on o. inCuir- continue0
to 0uit u> and 0ho= u> and do their <e0t to .unction a0 a legal >ro.e00ional an earn an hone0t living. 2o=ever" an-
di0cu00ion o. D0>ecial treatmentD 0hould include allo=ing 3rmaa0 and Sargent &arter e)tra time to Dmeet and con.erD
=ell a.ter the 0tart time 0et .or thi0 &rial....it 0hould .urther con0ider that a>>arentl- the >rivilege o. the >artici>ant that
all =itne00e0 in all trial0 enBo- 0eemingl- doe0 not allo= the under0igned to alleged untruth.ullne00 on Sargent &arterA0
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>art a<0ent a 0ummar- % da- incarceration and con.i0cation o. the under0ignedA0 >er0onal >ro>ert- =ell therea.ter" even
=ithout a =arrant. So much .or the Bill o. !ight0.
N!S 4+.4++ !ule0 o. >ractice. &he >rovi0ion0 o. N!S" Nevada !ule0 o. Civil /rocedure and
Nevada !ule0 o. ,>>ellate /rocedure relative to civil action0" a>>eal0 and ne= trial0" 0o .ar a0
the- are not incon0i0tent =ith the >rovi0ion0 o. N!S 4+.22+ to 4+.42+" inclu0ive" a>>l- to the
>roceeding0 mentioned in tho0e 0ection0.
N!S 4+.39+ ,>>ellate court not to di0mi00 or Cua0h >roceeding0 .or =ant o. .orm. 1n all
ca0e0 o. a>>eal under N!S 4+.22+ to 4+.42+" inclu0ive" the a>>ellate court 0hall not di0mi00 or
Cua0h the >roceeding0 .or =ant o. .orm" >rovided the >roceeding0 have <een conducted
0u<0tantiall- according to the >rovi0ion0 o. N!S 4+.22+ to 4+.42+" inclu0ive9 and amendment0
to the com>laint" an0=er or 0ummon0" in matter0 o. .orm onl-" ma- <e allo=ed <- the court at
an- time <e.ore .inal Budgment u>on 0uch term0 a0 ma- <e Bu0t9 and all matter0 o. e)cu0e"
Bu0ti.ication or avoidance o. the allegation0 in the com>laint ma- <e given in evidence under
the an0=er.
(urther >ro<lematic =ith Hudge S.erraGGaA0 a>>roach in !HC !ev2+11'++17+$ i0 that" =hile hi0 inter>retation
o. N!S 4+.2%3 allo=ed an eviction <a0ed onl- on a No Cau0e Eviction Notice to 0omeho= reCuire a rent e0cro=
de>o0it o. F2"27% .or a litigant =ith nothing to 0>are" 0uch an a>>roach did not allo= .or that tenant to a00ert
counterclaim0" de0>ite the e)>licit authorit- .or the tenant doing 0o u>on a court a>>l-ing NRS $$%A&1() A/tion"
4a"d +0on non0a3,nt of rnt# Co+ntr/lai, 43 tnant; d0o"it of rnt *it5 /o+rt; 6+d!,nt for -i/tion.
1ndeed" the under0igned tenant in that matter did attem>t to a00ert 0uch counterclaim0" ho=ever hi0 right to do 0o =a0
denied. Sim>l- >ut" the landlord =a0 a<le to have it hi0 =a- in 0o man- di..erent =a-0 in thi0 eviction matter. 2e =a0
a<le to >roceed under a no cau0e 0ummar- eviction notice =herein the non>a-ment o. rent =a0 not alleged =hile at the
0ame time <ene.iting .rom the court .orcing the tenant to de>o0it a rent e0cro= amount o. F2"27%. &hi0 a>>roach i0
.urther under0cored <- the .act that onl- 1+ da-0 or 0o a.ter receiving the 0ummar- eviction order the landlordA0 coun0el
0u<mitted to the tenant a landlordA0 a..idavit .or 0ummar- eviction <a0ed on the non>a-ment o. rent. 1t =ould 0eem
onl- .air and indeed reCuired <- N!S 11$,.49+ allo= the tenant to a00ert counterclaim0 =here the tenant i0 0o .orced
to ma?e a rent e0cro= de>o0it. ,nd" =hile the 6ea0e ,greement >rovided that the landlord 0hall <e" at 0u<0ection 2$:
7%& LIABILITY: management 0hall not <e lia<le .or an- damage or inBur- to !e0ident or
another >er0on or to an- >ro>ert- occurring on the >remi0e0 or an- >art thereo." or in
common are0 thereo." +nl"" "+/5 lia4ilit3 i" 4a"d on t5 n!li!nt a/t" or o,i""ion of
,ana!,nt8 5i" a!nt8 or ,0lo3...D
Hudge S.erraGGa 0ummaril- ruled that :reen ,ction 6a=n Service =a0 an Dinde>endent contractorD and" a0
0uch" Su<0ection 2$ o. the 6ea0e ,greement did not a..ord the tenant an o>>ortunit- to a00ert counterclaim0 under N!S
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11$,.4$+. 2o=ever" even i. the ,>>ellate Di0trict Court revie=ing !HC !ev2+11'++17$ in C#11'+3*2$ .ind0 thi0 0o"
the .act that the revie= i0 a Dde novoD revie= >ermit0 the a>>ellate court to con0ider =hether" even it =ere the ca0e that
the landlordA0 land0ca>er0 =ere Dinde>endent contractor0D" that Su<0ection 2$ =ould 0till allo= .or lia<ilit- .or their act0
to <e accorded to the landlord. !egardle00" Hudge S.erraGGaA0 ruling on =hether or not lia<ilit- e)i0t0 or =hether tenant
=a0 allo=ed to litigate counterclaim0 in the trial court are 0im>l- not matter0 =ell 0uited to 0ummar- Budgment" and"
regardle00" tenant met hi0 <urden in that regard 0u..icient to >reclude 0uch a 0ummar- di0>o0ition o. tho0e matter0.
8hile Hudge S.erraGGa ruled that the damage done <- the landlordA0 :reen ,ction 6a=n Service did not >re0ent
an o>>ortunit- .or the tenant to a00ert counterclaim0 @even though 0u<0ection 2$ o. the 6ea0e ,greement >rovide0 0o;"
the tenant 0hould have <een a..orded 0uch an o>>ortunit- to 0o a00ert 0uch counterclaim0" >articularl- =here 0uch a rent
e0cro= de>o0it =a0 not onl- reCuired" <ut then retained <- the court .or at lea0t 1+ da-0 a.ter 0igning the 3rder .or
Summar- Eviction. (urther" it i0 >reci0el- the0e t->e0 o. am<iguou0 >oint0 o. contractual inter>retation that are ill'
0uited to di0>o0al on 0ummar- Budgment: &he <urden o. >roo. a>>lica<le to a Summar- Eviction /roceeding under N!S
4+.2%3 dictate0 that" the court =ill allo= <oth >artie0 to 0>ea? and >re0ent evidence on their <ehal. a.ter =hich the court
=ill determine =hether there i0 Ia genuine di0>ute o. material .act0.J @See ,nvui" 66C v. :.6. Dragon" 66C in =hich
the Nevada Su>reme Court held that 0ummar- eviction ca0e0 0hould <e evaluated li?e motion0 .or 0ummar- Budgment.
in ,nvui" 66C v. :.6. Dragon" 66C" 123 Nev. 212" 1*3 /.3d 4+% @2++7;" the Nevada Su>reme Court ruled that it0
revie= o. an order granting 0ummar- eviction under N!S 4+.2%3@*; i0 Ide novoJ <ecau0e tho0e >roceeding0 are
analogou0 to an order granting 0ummar- Budgment under N!C/ %*. 1d. at 21%" 1*3 /.3d at 4+7. Burden o. >roo. o.
movant" hearing and determination /art- moving .or 0ummar- Budgment ha0 <urden o. >roving that no tria<le i00ue0
remain. Nevada !ule0 Civ./roc." !ule %*. 2arr- v. Smith" 199%" $93 /.2d 372" 111 Nev. %2$. 1n order to >revail on hi0
motion .or 0ummar- Budgment" general >artner =a0 reCuired to demon0trate .rom record" a..idavit0" or other evidence"
a<0ence or conclu0ive .al0it- o. limited >artner0A claim0 o. .raud or mi0re>re0entation in connection =ith di00olution o.
>artner0hi> agreement9 although he =a0 not reCuired to 0u<mit a..idavit0 in 0u>>ort o. hi0 motion" he =a0 reCuired to
>rove Iother indiciaJ o. none)i0tence o. .raud. !ule0 Civ./roc." !ule %*. 4aine v. Ste=art" 1993" $%7 /.2d 7%%" 1+9
Nev. 721" rehearing denied. Burden o. >roving a<0ence o. tria<le .act0 allo=ing entr- o. 0ummar- Budgment i0 u>on
>art- moving .or 0ummar- Budgment. !ule0 Civ./roc." !ule %*@a;. Butler v. Bogdanovich" 19$%" 7+% /.2d **2" 1+1 Nev.
449" rehearing denied. 1n 0uit again0t o=ner o. 0ervice 0tation .or death o. em>lo-ee o. contractor engaged in alteration0
at 0ervice 0tation" de.endant =hich moved .or 0ummar- Budgment had <urden o. e0ta<li0hing that de.endantA0
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relation0hi> to decea0ed =a0 tantamount to that o. em>lo-er 0o that >lainti..A0 e)clu0ive remed- =a0 the 1ndu0trial
1n0urance ,ct. N!C/ %*@<" c;9 N.!.S. *1*.+1+ et 0eC." *1*.+$%. 8eaver v. Shell 3il Co." 197%" %3% /.2d 7$7" 91 Nev.
324. &he <urden o. e0ta<li0hing the lac? o. tria<le i00ue o. .act i0 u>on the >art- moving .or 0ummar- Budgment.
2idden 8ell0 !anch" 1nc. v. Stri> !ealt-" 1nc." 19*7" 42% /.2d %99" $3 Nev. 143.
See" :omeG v. 1nde>endence 4anagement o. Dela=are" 1nc." 9*7 ,.2d 127* @D.C. 2++9;: D.n 19. 8e have 0aid
in another conte)t that a claim o. Ia retaliator- motive i0 a Cue0tion o. .act .or the Bur- @or the Budge in a non'Bur- trial;"
and" li?e other t->e0 o. claim0 in =hich motive or intent i0 in i00ue" i0 not =ell 0uited to di0>o0ition on a motion .or
0ummar- Budgment.J ,rthur 7oung U Co. v. Sutherland" *31 ,.2d 3%4" 3*$ @D.C.1993; @re.erring to a claim o.
retaliator- action under the DC2!,;9 0ee Ed=ard0" 0u>ra note 1$" 13+ 5.S. ,>>. D.C. at 141" 397 (.2d at 7+2 @I&he
Cue0tion o. >ermi00i<le or im>ermi00i<le >ur>o0e i0 one o. .act .or the court or Bur-]J;. 8e have 0aid the 0ame thing
a<out claim0 o. di0crimination" 0ee" e.g." 2ollin0 v. (ederal National 4ortgage ,00An" 7*+ ,.2d %*3" %79'$+ @D.C.2+++;"
<ut =e have" on occa0ion" u>held a trial court grant o. 0ummar- Budgment in .avor o. a de.endant accu0ed o.
di0crimination. See" e.g." 2amilton v. 2o=ard 5niver0it-" 9*+ ,.2d 3+$" 31%'1* @D.C.2++$;9 8allace v. S?adden" ,r>0"
Slate" 4eagher U (lom 66/" 799 ,.2d 3$1" 3$* @D.C.2++2;9 2ollin0" 7*+ ,.2d at %71. 8e there.ore do not .oreclo0e
the >o00i<ilit- that" on a >ro>erl- 0u>>orted record" the trial court ma- di0>o0e o. a de.en0e o. retaliator- eviction at the
0ummar- Budgment 0tage. 8hen the 0tatutor- >re0um>tion o. retaliator- action ha0 <een triggered" ho=ever" the record
=ould have to e0ta<li0h" under the 0tandard0 that govern 0ummar- Budgment" that the landlord ha0 re<utted it <- clear
and convincing evidence.D
1ndeed" thi0 i0 true =hen con0idering that a tough choice .ace0 the landlord in thi0 matter. 1. the tenant =a0 a
commercial tenant" then N!S 4+.2%3 .or<id0 >roceeding under the 0ummar- eviction >rocedure .ound therein =here
onl- a No Cau0e Eviction Notice =a0 0erved @ie" the non'>a-ment o. rent =a0 not alleged;" a0 =a0 the ca0e in that
matter. 2o=ever" to the e)tent the landlord =i0he0 to argue the tenant =a0 not a commercial tenant @de0>ite the 6ea0e
,greement e)>licitl- allo=ing .or 0uch u0e a0 =ell a0 local Goning la=0; then the dictate0 o. N!S 4+.3$% a>>l-" and the
tenant mu0t <e accorded a 0ta- o. eviction u>on de>o0iting =ith the court the >altr- 0ome o. F2%+" much le00 the F2"27%
Drent e0cro= de>o0it reCuired to >re0erve the right to litigate ha<ita<ilit- i00ue0D the !HC continued to hold a.ter the
3rder .or Summar- Eviction =a0 0igned" and .or =hich the !HC cla00i.ied it a0 the D<ond to cover the co0t0 on a>>ealD.
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1ndeed" NRS 1)&'%9 Sta3 of ./+tion +0on a00al; d+t3 of tnant *5o
rtain" 0o""""ion of 0r,i"" to 0a3 rnt d+rin! "ta3& 5>on an a>>eal .rom an order
entered >ur0uant to N!S 4+.2%3: 1. E)ce>t a0 other=i0e >rovided in thi0 0u<0ection" a
0ta- o. e)ecution ma- <e o<tained <- .iling =ith the trial court a <ond in the amount o.
F2%+ to cover the e)>ected co0t0 on a>>eal. , 0uret- u>on the <ond 0u<mit0 to the
Buri0diction o. the a>>ellate court and irrevoca<l- a>>oint0 the cler? o. that court a0 the
0uret-L0 agent u>on =hom >a>er0 a..ecting the 0uret-L0 lia<ilit- u>on the <ond ma- <e
0erved. 6ia<ilit- o. a 0uret- ma- <e en.orced" or the <ond ma- <e relea0ed" on motion in
the a>>ellate court =ithout inde>endent action.
2o=ever" >lea0e donAt mi0under0tand" the under0igned i0 Cuite .ond o. the e)tremel- intelligent and chari0matic
Hudge S.erraGGa and doe0 not mean thi0 Dhind0ight'Cua0i'2+O2+ vie=>ointD and overl- critical tone to indicate a lac? or
re0>ect .or the Court or Hudge S.erraGGa" >articularl- =here !ichard :. 2ill" E0C. and hi0 venera<le a00ociate Ca0e-
Ba?er" E0C. do 0uch a .ine Bo< o. >re0enting their >o0ition0" almo0t machine li?e in their e..icienc- and clarit- o.
>re0entation... and NevadaA0 6andlord &enant 6a= i0 0o hard to under0tand that a National 4erit (inali0t could 0>end *
month0 0tud-ing it night and da- and 0till <arel- under0tand it...to 0a- nothing o. =hat i0 a0?ed o. the !eno Hu0tice
Court Hudge0" =hom mu0t gra0> 0uch a varied cro00 0ection o. the la= on a dail- <a0i0" that it literall- <oggle0 the mind
the ta0? .aced <- the0e mem<er0 o. the Hudiciar-. 1t i0 certainl- not a >o0ition the under0igned could .athom .illing
an-time 0oon" and mo0t li?el- never.
NRS $$%A&1() A/tion" 4a"d +0on non0a3,nt of rnt# Co+ntr/lai, 43 tnant;
d0o"it of rnt *it5 /o+rt; 6+d!,nt for -i/tion& 1. 1n an action .or >o00e00ion <a0ed
u>on non>a-ment o. rent or in an action .or rent =here the tenant i0 in >o00e00ion" t5
tnant ,a3 dfnd and /o+ntr/lai, for an3 a,o+nt *5i/5 t5 tnant ,a3 r/o-r
+ndr t5 rntal a!r,nt8 t5i" /5a0tr8 or ot5r a00li/a4l la*& D
!ichard 2ill got me arre0ted .or 2+ hour0 .or Ba-=al?ing on 1O12O12...1 =a0 .ilming .rom a >u<lic 0>ot hi0
contractor0 >utting lot0 o. m- >o0e00ion0 @.ormer" 1 gue00" <ut S.erraGGaA0 12O21O11 D3rder !e0olving 4otion to Conte0t
/Er0onal /ro>ert- 6ienD ma-<e <e vulnera<le to a *+< voidne00 0et a0ide a0 the !HC .ailed to com>l- =ith N!S
4+.2%3@7; and @$;A0 dictate0 that the !HC 0et a hearing =ithin 1+ da-0 and have the 0heri.. 0erved notice thereo.....the !HC
0eem0 to onl- .ollo= N!S dictate0 =hen the- <ene.it landlord0 or tho0e =ith <ig mone- attorne-0 i0 =hat 0ome >eo>le
0a-" 1 hear" not that 1 =ould 0a- an- 0hit li?e that" no>e....&hen !ichard 2ill .iled .or a 0tal?ingOhara00ment 3!der again0t
me on 1 12 12 =hile 1 =a0 in the 0Cuad car at the 0cene at 4>m. Hudge Schroeder got a 0igned &/3 .iled =ithin 4%
minute0....the e)ten0ion hearing =a0 -e0terda-" 2ill 0ho=ed u> 0aid DiAve 0een neither hide nor hair o. him" 0o 1 am
moving to =ithdra= itD...&hi0 a<u0e o. >roce00 and e)tremel- du<iou0l- .iled &/3 <- !ichard :. 2ill" E0C. Bu0t ha>>ened
to inter.ere =ith m- a<ilit- to collect evidence .or the =rong.ul eviction 0uit" 0o 2ill <ought him0el. an a<u0e o. >roce00
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0uit or 0omething....it0 Bu0t <u0ine00 to me" i am not mad at him" <ut he i0 co0ting me mone- and time and energ-. 1 tried
to >ut 0ome o<Bection0 on the record at the &/3 e)ten0ion hearing @=hich la0t % 0econd0; and !HC Hudge Schroeder"
0narled Ddo -ou =ant to go to BailVD" 1 0aid Dno 0ir" -our honorD and >ac?ed u> m- 0tu.. and le.t...
1 might get 0u0>ended .rom the >ractice o. la= over 0ome o. thi0 or other=i0e have to re>ort
thing0 to the 0tate <ar under SC! 111 @conviction o. D0eriou0 crime0D; incident to <eing arre0ted .or
tre0>a00 at m- .ormer la= o..icethen the !HC 0eem0 to .igure out that that0 a no'no and hurrie0 u> to
get me 0erved .or a hearing @=hether 1 li?e it or not or =hether it com>lie0 =ith nrc> * or
0erviceOnotice rule0; to get me <ac? the F23++...0o the !HC didnAt need m- >ermi00ion to 0et that
hearing" <ut then the- claim the couldnAt com>l- =ith the Dmandator- hold hearing on 4otion to
Conte0t /er0onal /ro>ert- 6ien =ithin 1+ da-0 and have notice o. it 0erved <- the Sheri.. u>on
6andlordD .ound in N!S 4+.2%3@7; and @$; <ecau0e D-ou didnAt give u0 >ermi00ion to 0et the hearingD
@the 4otion to Conte0t /Er0onal /ro>ert- 6ien =a0 .iled 11O17O11" and the- emailed me and 2ill
called 0a-ing a hearing =a0 on .or 11 22 11...1 0ho=ed u> .or it <ut it =a0 vacated or cancelled
<ecau0e 1 DdidnAt give them >ermi00ion to 0et it or go .or=ard =ith itD or 0omething....0o 1 didnAt get a
hearing on the 6ien undtil 12O2+O11...=hereu>on S.erraGGa e)ceeded hi0 Buri0diction under N!S
4+.2%3@7;" @$; re0erving all thi0 Bur0idiction0" ruling on thing0 he =a0nAt given authorit- to" etc."
etc...&he ca0e i0 on a>>eal right no= and 1 am in need o. hel> =ith it....But there i0 0till a chance @no
claim >reclu0ion; to .ile a =rong.ul eviction la=0uit @i =a0 not even >ermitted to a00ert counterclaim0
in the 0ummar- eviction >roce00...and <ecau0e the- onl- >ur0ued that under a No Cau0e Eviction
Notice" <ecau0e the- ?ne= alleging non >a-ment =ould o>en >andoraA0 <o)" the- violated N!S
4+.2%3A0 dictate that 0ummar- eviction >roceeding0 are im>ermi00i<le again0t commercial tenant0
unle00 non >a-ment o. rent i0 alleged. &he- can >ro<a<l- 0ho= it =a0 m- home and la= o..ice"
<ut...1 0a- mi)ed u0ed or even incidental u0e Cuali.ie0 me a0 a commercial tenant. &he 6ea0e
,greement 0a-0 1 can u0e the >ro>ert- .or an- >ur>o0e and it =a0 a dui coun0eling 0chool >reviou0 to
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m- tenanc-" 0o it i0 Gone .or commercial u0e" e0>eciall- >ro.e00ional o..ice u0e" etc....
&here i0 all 0ort0 o. claim0 again0t 2ill here" a<u0e o. >roce00 @the >hon- &/3" !/D 3..icer
Carter admitting 2ill >a-0 him mone- to arre0t >eo>le @the- =ill 0a- it0 =a0 a Bo?e" <ut it0 not a
Bo?ing 0ituation =hen -ou are arre0ting an attorne- .or tre0>a00 a.ter 2ill 0end0 a <ill .or the .ull
rental value o. the >ro>ert- @not Bu0t rea0ona<le 0torage moving and e)>en0e0 undre N!S 11$a.4*+;
F9++ .or Novem<er" >lu0 21ll ha0 thi0 contractor named /hil =ho ?ee>0 0u<mitting the0e Bac?ed u>
<ill0 @F1+%+ to <oard u> the >orch a0 Drea0ona<le 0torage" moving and inventor-ingD de0>ite hi0 not
ta?ing an un0ecured =indo= unit ac out o. the =indo=...and the >lace =a0 <urlgariGed on 12O12O11
.or a<out F$"+++ or 0o o. >er0onal >ro>ert-;...>lu0 =ithheld m- clientA0 .ile0 .or * =ee?0" m- driver0
licen0e .or 7 da-0...(DC/, violation0...the- 0till havenAt returned the F7++ 0ecurit- de>o0it...hi0
Declaration0 are .ull o. >erBur-"in m- o>inion" a0 are hi0 contractor0...
CONCLUSION
Ba0ed u>on the .oregoing the under0igned re0>ect.ull- reCue0t0 that thi0 Court Set ,0ide the
Summar- Contem>t 3rder incident to the (e<ruar- 27" 2+12 &rial" return all o. the under0igned
/er0onal /ro>ert-" and Di0mi00 thi0 Criminal Com>laint" and another relie. thi0 Court deem0 Bu0t.
AFFIRMATION PURSUANT TO NRS 7'(B&)')
&he under0igned doe0 here<- a..irm that the >receding document doe0 not contain the 0ocial
0ecurit- num<er o. an- >er0on.
Dated: 4arch *" 2+12
OSO Zach CoughlinWWWWWWWW
Zach Coughlin" De.endant
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PROOF OF SER:ICE
/ur0uant to N!C/ %@<;" 1 certi.- that 1 0erved a co>- o. the .oregoing document u>on the
.ollo=ing >art- <- .a)ing" emailing" dro>>ing !. at their o..ice" and >lacing a true and correct co>-
o. the .oregoing document in the u0 mail. addre00ed t>:
,li0on 4. 3rmaa0" E0C.
3ne Ea0t (ir0t Street" 3rd (loor
(a) num<er: 77%'334'422*
ormaa0a[reno.gov" ?adlicB[reno.gov
Hohn Padlic" E0C.
!eno Cit- ,ttorne-A0 3..ice ' Criminal Divi0on
/.3. Bo) 19++ !eno " N# $9%+%
&el: 77%'334'2+%+ (a): 77%'334'242+
,ttorne- .or Cit- o. !eno 77% 334 3$24
!eno 4unici>al Court .iled <- .a) to :
Date thi0 4arch *" 2+12
OSO Zach Coughlin
Zach Coughlin" De.endant
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INDE; TO E;HIBITS
1. E)hi<it 1: variou0 relevant material0" including la= revie= article0" etc. on retaliator- arre0t0"
retaliator- >ro0ecution0" etc. 3ne hundred 0i)t-'0i) @1**; >age0.
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EXHIBIT 1
EXHIBIT 1
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PDA
seansbabyluv
Prison Talk > U.S. REGIONAL FORUMS > COLORADO > Colorado News & Events > Owens
judge picks were many, male and often DAs
View Full Version : Owens judge picks were many, male and often
DAs
09-09-2007, 01:08 PM
Owens judge picks were many, male and often DAs
By DENNIS HUSPENI (dennis.huspeni@gazette.com)
THE GAZETTE
September 9, 2007 - 8:25AM
Former Republican Gov. Bill Owens appointed more judges in his two terms in office than
any other governor in Colorados history.
Owens 174 appointments, from County Court judge up to Supreme Court justice,
outnumbered both governors before him combined: Roy Romer appointed 114 and Dick
Lamm named 59. Each served three terms.
Owens first pick for the Colorado Supreme Court, Denver Deputy District Attorney Nathan
Ben Coats in 2000, showed early the type of judge Owens preferred.
Almost half of Owens judges were prosecutors or former prosecutors, and 70 percent were
men.
A Gazette review of Owens judicial appointments during his eight years in office shows at
least 72 had served multiple years as prosecutors. In that same period, Owens appointed
only four judges with public defender experience.
Though not even a full year into his first term, Gov. Bill Ritter has appointed more judges
five with public defender experience. One attorney, former Deputy Public Defender
Jonathan Walker, is thought to be the first active public defender named to a judgeship in
nearly a decade. Walker was appointed by Ritter as an El Paso County Court judge in May.
Of Ritters first 22 appointments, five have public defender experience, seven were former
prosecutors and 10 were from private practice or already judges. Nearly 40 percent were
women.
I absolutely think its one of the most important things a governor does, said Ritter,
former Denver District Attorney from 1993 through 2004 and a Democrat.
As of July 1, there were 285 judges in the state: county, district, court of appeals and
Supreme Court justices. That means Owens appointed more than 60 percent of the states
judges in his two terms.
While more recent appointments are bringing judges with diverse backgrounds to the
bench, most legal experts say they dont think the change will have a significant impact on
what happens in most courtrooms.
Its only in the states highest courts that judges rule as a group.
During his tenure, Owens appointed 14 of the 19 Court of Appeals judges, or 73 percent.
Among the seven Colorado Supreme Court Justices, Owens appointed two judges, both
considered conservative.
Still, most of the justices were put on the bench by Romer, a Democrat, and legal experts
say it leans left politically.
Owens declined to comment for this story.
A MATTER OF IDEOLOGY?
Owens judge picks were many, male and often DAs [Archive] - Prison Talk http://www.prisontalk.com/forums/archive/index.php/t-289418.html
1 of 4 3/7/2012 10:18 AM
Political and legal experts say its natural for a governor to appoint judges who share his or
her ideology.
Owens made no secret he wanted tough judges to hand out stiff sentences.
There werent a lot of prosecutors appointed to the bench in recent years, Owens told the
House Republican Caucus shortly after taking office in 1999.
I think Ive done exactly what I said I would do: I said I would appoint a different type of
judge, Owens said in 2002. I said I would, in fact, put judges on the bench who
understand the impact of crime and understand the importance of the criminal justice
system. A major function of government is to provide for public safety. So I plead guilty to
that charge.
A judges leanings toward prosecutors or defense attorneys is important: its one of the
things the states Commissions on Judicial Performance looks at when evaluating judges for
retention recommendations.
Will those judges affect Colorados crowded prison system and county jails?
Many Colorado legal experts dont see a need for alarm.
The impact is not going to be as great as some people might fear, said David Getches,
dean of the University of Colorado at Boulders Law School.
The nominating commissions from each of Colorados 22 Judicial Districts send the
governor three candidates. The governor then has 15 days to make a choice, or it falls to
the states chief justice.
Frankly, they dont send up people who are incompetent, Getches said. Id be very
surprised to see a politicalization of the bench in either direction. ... You dont see any
swerves in the road.
Getches concurs picking judges is a key duty of Colorados governor.
It leaves a lasting legacy, Getches said. When you appoint a couple hundred judges,
theyll be around for 10, 20 or 30 years beyond that governors term. Thats a profound
kind of impact to have.
A QUESTION OF BALANCE
University of Denver law professor Robert Hardaway, an expert in politics and the law,
said Owens reliance on prosecutors for judges didnt bother him.
Many of those prosecutors have private practice experience, which would usually include
criminal defense work, he said.
I have always thought it was a terrible idea to appoint a judge who has only been on one
side of the fence, Hardaway said. If I were governor, I would never appoint someone
who was a lifetime prosecutor. By the same token, I wouldnt appoint someone who had
been a lifetime public defender, either.
Former Colorado Supreme Court Justice Rebecca Love Kourlis, who founded DUs Institute
for the Advancement of the American Legal System, said theres a difference between an
ideal group of judicial candidates, and reality.
Ideally, the judiciary should be balanced between civil attorneys, criminal attorneys, men,
women and people of all color and backgrounds, Love Kourlis said. On the other hand,
with the exception of the Court of Appeals and the Colorado Supreme Court, each judge
sits alone. So the balance of the whole system is probably less important than each
individual judges ability to set aside personal bias and be fair.
Ritter, a Democrat, said he doesnt look at a judicial candidates political leanings.
Certainly, people will have their own ideologies when coming on the bench, Ritter said. I
always strive for candidates who will check that advocacy role, that part of their political
2 of 4 3/7/2012 10:18 AM
scaredinlove
irshnrse
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Vigilant
ideology, and do the work of administering the law.
Ritter said hes worked in front of great judges who were former public defenders, so he
is trying to strike a balance with his appointments. He also spoke highly of former
prosecutors whove become judges, many from his office when he was district attorney.
Each judge brings a different experience to the bench, Ritter said. If someone has
expertise in defending insurance claims, other judges can ask about that when they have
those cases. Thats part of the reason you want a balance.
Getches said its obvious most people are satisfied with Colorados judges, as evidenced by
voters rejecting term limits for Colorado judges last year.
If we had a judicial system given to political mood swings, or prosectorial or defense
swings, someone in the Bar would have been speaking for term limits, Getches said. I
dont know of any lawyers who were for that.
WHERE THE INFORMATION CAME FROM
The Gazette obtained the list of 174 judges appointed by former Gov. Bill Owens, and the
22 appointed by current Gov. Bill Ritter, from the Office of the State Court Administrator.
The judges biographies were checked using information from the states Commissions on
Judicial Performance, which recommends whether or not judges should be retained when
standing for retention election. Information also was obtained from the individual judicial
districts Web sites and in some cases by calling the judges clerks. Biographical
information was unavailable for 10 judges appointed by Owens.
09-09-2007, 05:26 PM
Thanks for posting.
09-09-2007, 10:14 PM
Thanks Cindy.
09-10-2007, 03:41 AM
Cindy. This is exceptionally informative! Thank you for providing some, shall we say,
ammunition! Information like this is most valuable, especially if we choose to go to those
meetings. The statistics don't lie.
I'm s-o glad I found PTO. I have become a bit apathetic and definitely exhausted doing my
own research. PTO is not only informative, it creates a bond. The support is excellent!
Blessings to you!
:bow:
09-10-2007, 03:47 AM
You're very welcome. I only wish the public would pay more attention to what our
lawmakers are up to...then maybe we wouldn't be in this fiscal money crisis with the
prisons...we'd be putting our money into rehabilitation instead. But like Owens said, he
was all about punishment. Ironically that didn't apply to his son who along with other
friends a few years ago, vandalized the school buses belonging to Cherry Creek while he
was attending high school there. He was only required to pay restitution...and he was a
juvenile at the time, so with his records sealed, we'll never know if he actually paid it all or
not. :cool:
09-10-2007, 10:27 AM
Hi Cindy...
3 of 4 3/7/2012 10:18 AM
Owens - son - did - WHAT?????? If THAT doesn't prove the existence of blatant elitism in
governor Owens office, what does???
My bet is on a cover-up. No restitution, no charges, no nothing!
Aah. What a way to wake up.
Right you are. People need to pay attention to the so-called leaders. I'm just lately
W-I-D-E awake concerning the deceptions of politicians and how they are constantly
targeting the average Joe/Jane. This bit of history requires more research on my part to
add to my growing list of grievances.
Thank you once again! I, for one, am SO glad Owens is gone. I despised his laughing-
at-you grin --- which was noted by many news anchors all over the nation as being
inappropriate during the Columbine incident.
Major sigh.......
:banghead: COFFEE!!!
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4 of 4 3/7/2012 10:18 AM
Home
Are We Becoming a Police State?
Traffic enforcement has become a major industry in the United States. This essay
presents a look at some of the social, psychological, and economic trends behind the
emergence of this big business.
Are we becoming a police state? That is a difficult question, but it can certainly be
argued that in some places in the United States, yes, we definitely are. Let's take a look
at some trends that have emerged since the late 1970's.
But first, let's go back in history. Public police forces did not exist in the United States
until the middle of nineteenth century, when their introduction met with significant
resistance from the populace.
1
By the 1950's, excluding the largest cities (many of which
have had problems with corrupt law enforcement officers dating well back into the 19th
century), citizens generally had a highly favorable opinion of law enforcement
officers. Good people had little to fear from the police, and the moral person's
encounters with police were generally favorable. The sheriff was a "good guy," the
"white hat" celebrated in so many of the Old West movies and television programs of that
era. Children at play fought over who got to be the sheriff, and this esteem for law
enforcement could be seen in many other places in our culture.
Contrast this with the present. Good people now become uneasy when a police car pulls
out behind them. The average encounter with police is often stressful and ends with the
citizen having to divert a bunch of his income to the local powers-that-be (perhaps more
like the bands of outlaws, or "black-hats" of those same Old West movies).
What happened? There are a several different phenomena that I believe explain this
cultural shift.
"Us vs. Them" Mentality
Let's go back 40 years. Most places had "beat cops," patrolmen who would travel
around their jurisdiction on foot. These patrolmen would regularly encounter the
merchants and residents in their jurisiction, greet them, exchange some pleasantries or
family news, and maybe even be treated to a free cup of coffee at the corner
store. These cops knew the people they were protecting, and they were reminded several
times a day of the community values they were protecting, and of the people they were
protecting. I attribute much of this to the unofficial face-to-face encounters that were
Are We Becoming a Police State? http://www.freeexistence.org/police_state.html
1 of 5 3/7/2012 10:19 AM
inherent to the job.
Fast forward to the present. J ohn Q. Suburbia no longer has a single, friendly officer
patrolling his neighborhood on foot. In the interest of police efficiency, a much more
anonymous team of people in cruisers takes turns driving through that same
neighborhood. The community interactions of the average patrolman are now only a
narrow subset of what they once were. Now, for many patrolmen, these on-duty
encounters are typically limited to: 1. getting out of their car to respond to a call (often
because someone is acting irrationally or violently), and 2. pulling people over for traffic
infractions, said people thus being inherently disagreeable. Many of the favorable
interactions are now gone. Good people now see less of the police except in unfavorable
circumstances. And conversely, the police now see less of the citizenry except in
unfavorable circumstances. It's only natural that, in this situation, police officers will
begin to perceive their community as little more than a giant playground of dysfunctional
children who really need to be kept in line. Perhaps I am overstating things with this
metaphor, but the stated situation will, at a minimum, greatly increase the cynicism of our
patrolman.
Now, add to this mix officers who spend the majority of their time enforcing traffic
laws. These patrolmen make their living hunting for speeders, or waiting for drivers to
slip up and make some kind of fine-worthy mistake. The citizens these patrolmen
encounter are quite reasonably regarded by them as prey; the typical citizen who is pulled
over is going to react to the officer with some combination of fear and anger. Obviously,
the bond between the citizen and the patrolman is not exactly strengthened (in either
direction) by this state of affairs. This trend has been exacerbated by the growing power
and budget of state patrols, law enforcement organizations chartered exclusively for
traffic enforcement (and thus, revenue generation; see "Critical Mass," below). State
Troopers are often little more than roving "meter maids" looking to issue tickets for the
most trivial of infractions. Further, they generally lack many of the powers granted to
police officers. As a result of these factors, they are held in much the same public
contempt as meter maids.
This "Us vs. Them" attitude can emerge anywhere, even in the smallest of towns, given
the growing influence of state patrols whose troopers have jurisdiction on any public road
in your state. State patrols typically have very little citizen oversight. Unlike a sheriff's
office where the sheriff must periodically be re-elected (albeit by a populous often
apathetic to such less prominent offices), state troopers have no such motivation to keep
from angering or frustrating the commuting public.
Decreasing Public Confidence
2 of 5 3/7/2012 10:19 AM
The 1982 Figgie Report on Fear of Crime revealed a growing belief that police are not
effective in controlling crime. This sentiment has been echoed in the free market: by
1990, there were over twice as many private police (watchmen, guards, security experts)
as public police in the United States. Between 1964 and 1981, employment at firms
providing these private police services increased over 400 percent as more individuals
and companies sought a more effective solution in the private sector.
1
Police Patrol Resource Critical Mass
This is a simple issue of economics. Note that this example does not rely on any
assumption of community growth. Now, let's assume you live in a a rural county or
small town with few police officers. The duties of the patrolman are going to be
primarily responding to calls, and generally trying to keep their community safe. Now,
add some more officers into our mix. At some point, you'll hit critical mass, that is, you'll
reach a point where, on the average day, you've got more police officers on the clock
than you have work for them to do. What do you do with these extra patrolmen? You
inevitably send some of them out to do traffic patrols (ticketing the out-of-staters and
whatnot). These tickets then bring in additional revenue to our town or county that
would not have existed without the additional traffic patrols. A couple of years pass, and
the local government takes notice of the revenue brought in by our police department or
sheriff's office, and starts directing some of that money back into the police
department. After upgrading some equipment and possibly their facility, they begin
hiring additional police. After all, the sheriff figures, if their current staffing lets them do
a good job at minimizing crime and bringing in revenue, then adding patrolmen will let
them do a great job at those things. What do these additional patrolmen do? In terms of
protecting and serving you, the police department is now even more overstaffed than
before. As such, a significant percentage of the new patrolmen are sent out to do
additional traffic enforcement. This cycle continues, and with each new iteration, the
community ends up with even more officers on the streets. Maybe the crime rate drops
by a couple of percent, and few complain about the cost of all the officers since the
police department is now a significant source of revenue. It is now standard practice for
many police agencies to staff additional officers exclusively for traffic enforcement
duties, under the assumption that these officers will pay their own salaries with income
from traffic citations. Law enforcement agencies refer to such officers as "self-paid".
Also exacerbating things is the way public budgeting works, wherein the failure of an
agency to spend all its annual budget may result in a reduction of budget allocation next
year. This parallels public road construction, wherein construction crews are assigned to
resurface a perfectly good road just to consume and conceal a budgetary
surplus. Likewise, once the agency and local government become dependent on traffic
3 of 5 3/7/2012 10:19 AM
enforcement revenue, this reliance will prevent any reduction in traffic enforcement later
on.
This phenomenon is probably most likely in growing communities, since it's easier to
justify more patrolmen when you're regularly adding to your staff to compensate for
growth. It is not hard to imagine officers in these communities being rewarded (the old
notion of "quotas" for a period of time, or less officially in some law enforcement
organizations, with an award at the end of the period for most citations issued). Such a
reward is just the institutionalization of the organization's desire for more traffic
enforcement revenue.
Big Profits from Enforcement
One particularly alarming trend relating to traffic ticket revenue is the increasing
percentage that police agencies get to keep. Traditionally, only a small amount of the
revenue collected from a given traffic ticket actually went to the police agency issuing the
citation; the rest went into a general fund for the state, county, or municipality in which
the cited offense occurred. This has changed dramatically; some police agencies (such as
theLarimer County Sheriff's Department in Colorado) actually keep 75 percent of
collected revenue from traffic tickets! It doesn't take much imagination (unless you're a
Colorado legislator, evidently) to realize that exploitive levels of enforcement of minor
traffic laws will result, which is exactly what has happened in Larimer County. Such
police agencies are happy to share the wealth with their enforcers: one half of the highest
paid Larimer County officials are officers in the Larimer County Sheriff's
Department! It's hard to imagine a police agency that perpetually complains about having
too low a budget to function paying someone over $100,000 to drive around a rural area
and issue speeding citations to motorists -- a job any high school graduate is qualified to
perform.
Conclusion
It's not hard to see that if either of the above phenomena happen in the community, the
most fundamental values of your local law enforcement organizations have changed
significantly. Overshadowing all of this is the growing profit motive of law enforcement
agencies (mirrored in the "War on Drugs," wherein law enforcement agencies and local
municipalities regularly make a great deal of money through the confiscation of property
loosely attached to a drug transaction). This business model is parasitical by nature, and
this cannot help but color the activities of the law enforcement agency. The motto on the
police cruiser remains "To Protect and Serve," but in many jurisdictions it would more
accurately read "To Raise Revenue off the Backs of the Citizens."
4 of 5 3/7/2012 10:19 AM
Without a doubt, there are still a lot of good people in the field of law
enforcement. Unfortunately, these people are outnumbered at least 2-1 (according to
one law enforcement officer I spoke with) by the glorified hall monitor type figure we
have all come to fear. And perhaps that is the most important difference between the
America of now versus the America of 40 years past.
Recent Updates
April 2011: Corrupt local governments have begun balancing their budgets on the backs
of drivers as states across the US triple speeding fines and add ridiculous surcharges to
moving violations. The City of Los Angeles now makes $1.5 million a year from
cameras at a single intersection in the San Fernando Valley.
November 2010: Many states have a disproportionately large number of judges who
were former prosecutors, but almost no judges who were former public defenders. See,
e.g., this article regarding trends in recent judicial appointments in Colorado.
January 2007: Check out Overkill: The Rise of Paramilitary Police Raids in America on
the CATO Institute website. This article also has an interactive US map showing recent
botches paramilitary police raids.
December 2006: Do police departments turn away applicants for being too
intelligent? Click here to find out.
Bibliography
1 Benson, Bruce. The Enterprise of Law. San Francisco, CA: Pacific Research Institute
for Public Policy, 1990.
Reminder: All content on this site is automatically copyrighted by virtue of the Berne
Convention for the Protection of Literary and Artistic Works.
5 of 5 3/7/2012 10:19 AM
Columbia Law Review
May, 2009
Note
*755 BETWEEN HEALTHY AND HARTMAN: PROBABLE CAUSE IN RETALIATORY
ARREST CASES
John Koerner
Copyright (c) 2009 Directors of The Columbia Law Review Association, Inc.; John Koerner
This Note addresses a circuit split concerning retaliatory arrest claims. In most cir-
cuits, a defendant police officer cannot be held liable for retaliatory arrest if the arrest
was made with probable cause. This is inconsistent with the Supreme Court's decision in
Mt. Healthy City School District Board of Education v. Doyle, which requires defend-
ants in retaliation claims to show that they would have taken the same action in the ab-
sence of a retaliatory motive. But there are a number of exceptions to the Mt. Healthy
rule, including the Supreme Court's recent decision in Hartman v. Moore. In Hartman,
the Supreme Court ruled that a plaintiff in a retaliatory prosecution claim must prove
that the prosecutor brought charges without probable cause. This Note argues that courts
should follow Hartman and require a plaintiff to prove the absence of probable cause
only in a subset of retaliatory arrest cases: cases involving complex causation and cases
where the officer had probable cause to believe that the plaintiff had committed a felony
offense. In all other retaliatory arrest cases, courts should follow Mt. Healthy and permit
plaintiffs to bring suit even if the officer had probable cause. This nuanced approach
strikes the appropriate balance between free speech rights and the needs of law enforce-
ment.
Introduction
On March 12, 1997, Anthony Greene walked into the Grand Rapids police department to
retrieve his car, which had been towed from a no parking zone. [FN1] When he was told that
he would have to pay a storage fee for the car, Mr. Greene started arguing loudly with Lieu-
tenant Jack Barber and cursing at him. [FN2] The argument was loud enough that interns an-
swering telephones nearby had to put their callers on hold. [FN3] Lieutenant Barber told Mr.
Greene, You can't talk to me like that in my building. [FN4] Greene responded that he was
simply exercising his freedom of speech. [FN5] Barber replied, Well, not in my building.
[FN6] Greene said, Well, if that's how you feel, you're really stupid. [FN7] At that point,
Barber told Greene that he was under arrest. [FN8] Greene protested that the arrest *756 was
illegal; as the officers struggled to subdue him, he was pepper sprayed. [FN9] Greene was
charged with creating a disturbance and with hindering and opposing a police officer, but was
acquitted of both charges. [FN10] He sued for retaliatory arrest. [FN11]
109 CLMLR 755 Page 1
109 Colum. L. Rev. 755
2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
In the typical retaliation case, a plaintiff must show that the defendant took a significant
adverse action against the plaintiff, [FN12] and that the action was substantially motivated
against the plaintiffs' exercise of constitutionally protected conduct. [FN13] The defendant
can escape liability by showing that she would have reached the same decision . . . even in
the absence of the protected conduct. [FN14] The burden then shifts to the plaintiff to rebut
the defendant's showing. This burden-shifting framework was established by the Supreme
Court's decision in Mt. Healthy City School District Board of Education v. Doyle. [FN15] For
Greene, meeting the standard would require convincing a jury that Lieutenant Barber would
not have made the arrest if he had not felt personally insulted.
Notwithstanding the general applicability of Mt. Healthy to retaliation cases, [FN16]
courts have carved out a number of exceptions to its pleading standards, based on various
policy or evidentiary concerns. In retaliation cases brought by prisoners, for example, some
courts leave the burden with the plaintiff prisoner to show that the defendant's actions would
not have occurred in the absence of a retaliatory motive. [FN17] In the recent decision of
Hartman v. Moore, the Supreme Court upheld another such exception to Mt. Healthy, ruling
that a plaintiff must plead and prove the absence of probable cause to state a claim for retaliat-
ory prosecution. [FN18] Some courts have extended this retaliatory prosecution exception into
retaliatory arrest cases, requiring plaintiffs to prove that the defendant officer did not have
arguable probable cause to make the arrest. [FN19] If Mr. Greene found himself in one of
these circuits, he would be required *757 to show that Lieutenant Barber did not have argu-
able probable cause to make the arrest--a requirement that could easily have proved fatal to
his claim. [FN20]
Given that a rule like Hartman's, which allows defendants to defeat a retaliation claim
based on probable cause, diverges from the Supreme Court's general burden-shifting frame-
work in Mt. Healthy, [FN21] what approach should courts adopt when faced with a retaliatory
arrest case? There are compelling arguments to support positions both for and against requir-
ing plaintiffs to establish the absence of probable cause. On the one hand, the facts of Greene
v. Barber strongly suggest retaliatory motive on Lieutenant Barber's part--the officer claimed
to be immune from the First Amendment, made the arrest after Greene challenged his author-
ity and called him stupid, and arrested Greene on a minor violation without first trying to
find another solution to the problem. It seems unjust to apply a pleading standard which would
exclude Greene's claim based on the rather technical detail that Lieutenant Barber had prob-
able cause to make the arrest. On the other hand, many cases will not involve such clear evid-
ence of retaliatory motive. A bright-line rule that would dismiss claims on the basis of prob-
able cause would be less burdensome both for police officers and for judges. Some cases in-
volve complex chains of causation, where the plaintiff faces the difficult burden of proving
that one official induced another official to make the arrest. [FN22] Other cases involve
plaintiffs who have committed more serious offenses, where the arresting officer's retaliatory
motive is less likely to have played an important role in the arrest decision. [FN23]
Currently, courts resolve this dilemma in retaliatory arrest cases by siding either with the
Mt. Healthy rule, which never requires a specific showing of no probable cause, or the Hart-
man rule, which always requires such a showing. [FN24] This Note argues that an all-
or-nothing rule that sides with one approach and rejects the other wholesale is misguided and
will lead to an incoherent doctrine, as such a rule makes no attempt to properly fit the facts of
individual cases. While many questionable retaliatory arrest cases warrant a departure from
Mt. Healthy and a dismissal on a showing of probable cause, there are also many cases where
such a departure will deny redress for a clear injury and allow a wrongdoer to escape *758
punishment. This Note argues that a more nuanced approach is necessary, one that requires a
showing of no probable cause only in certain retaliatory arrest cases.
This discussion has important implications that go well beyond the retaliatory arrest con-
text. First Amendment retaliation doctrine has sparked numerous circuit splits, [FN25] creat-
ing incentives for forum shopping and undermining consistency and fairness in the application
of the law. [FN26] Some of this inconsistency may arise from the courts' insistence on carving
out categorical exceptions to Mt. Healthy, without analyzing the policy concerns that justify
their divergence. [FN27] By crafting more narrowly honed exceptions that closely mirror un-
derlying policy concerns, courts of appeals may be able to resolve some of the chaos that has
characterized this area of law.
Part I discusses First Amendment retaliation doctrine and outlines the elements of a retali-
atory arrest claim, with a special focus on the standard of causation set forth in Mt.
Healthy. It systematically analyzes First Amendment retaliation law and examines several
areas where courts have departed from Mt. Healthy. Part II focuses on the Supreme Court's
recent departure in Hartman and concludes with an explanation of the circuit split with respect
to retaliatory arrest cases in the wake of Hartman. Part III reviews the evidentiary and policy
concerns that motivated the Supreme Court's departure from Mt. Healthy in Hartman-
-complex causation, presumption of regularity, and the evidentiary value of probable cause. It
aligns these concerns with certain retaliatory arrest cases: cases involving complex causation
and cases involving felony arrests. In these cases, and only in these cases, courts should de-
part from Mt. Healthy and require a plaintiff to plead and prove the absence of probable cause.
I. First Amendment Retaliation in Theory and Practice
The First Amendment prohibits government officials from retaliating against individuals
on the basis of their protected speech. [FN28] This principle is founded on the notion that re-
taliation against protected speech threatens to discourage the exercise of First Amendment
rights. [FN29] *759 While cases about prior restraints on the freedom of speech tend to dom-
inate First Amendment jurisprudence, [FN30] courts will not permit the government to use a
regime of subsequent punishments to suppress protected speech that it could not otherwise
reach through a prior restraint. [FN31] The Supreme Court has expressly recognized that the
right to be free from retaliation is a long-established right. [FN32]
Retaliation can be difficult to identify, [FN33] and the courts have endeavored to structure
a cause of action that strikes an appropriate balance between protecting First Amendment
freedoms and shielding public officials from meritless or vindictive lawsuits. Part I.A de-
scribes the elements of a retaliatory claim. Part I.B provides a more detailed analysis of the
causation element, and examines the Supreme Court's decision in Mt. Healthy, [FN34] which
sets forth the predominant causation standard for retaliation cases. Part I.C catalogs and dis-
cusses departures from Mt. Healthy's causation standard.
A. The Elements of a Retaliation Claim
To establish a prima facie claim of First Amendment retaliation, the plaintiff must prove
three elements: (1) protected speech (they were engaged in constitutionally protected activ-
ity); (2) injury (the defendants'*760 actions caused them to suffer an injury that would chill
a person of ordinary firmness from continuing to engage in that activity); and (3) causation
(the defendants' adverse actions were substantially motivated against the plaintiffs' exercise
of constitutionally protected conduct). [FN35] The defendant may rebut this prima facie case
by proving by a preponderance of the evidence that it would have reached the same decision .
. . even in the absence of the protected conduct. [FN36]
1. The First Element: Protected Speech.--In the context of retaliatory arrest claims, the
first prong is usually met. In a number of cases, the plaintiff's speech is nothing more than
verbal abuse directed at the police officers, [FN37] and defendants frequently argue that the
plaintiff's speech falls into the unprotected category of fighting words. [FN38] Fighting
words is a narrow exception, [FN39] however, and the Supreme Court has held that the First
Amendment protects a significant amount of verbal criticism and challenge towards police of-
ficers, who are expected to exercise greater restraint in their response than the average citizen.
[FN40] Accordingly, while the fighting words defense does occasionally succeed, [FN41] in
most cases *761 the plaintiff will have little difficulty convincing a federal court that the
speech in question was protected. [FN42]
2. The Second Element: Injury.--Just as the first factor rarely decides a retaliatory arrest
case, the second factor is rarely debated at all. [FN43] An arrest is certainly an injury that
would chill a person of ordinary firmness from continuing to engage in protected speech.
[FN44] Most of the cases contesting the injury requirement arise out of the Second Circuit,
which has occasionally required the plaintiff to prove that the defendants' actions effectively
chilled the exercise of his First Amendment right. [FN45] This is a minority view, [FN46]
and the Second Circuit itself has not always adhered to this subjective standard, recognizing
that the fact that a plaintiff continued to engage in protected speech should not constitute a
free pass for alleged police conduct that was constitutionally odious. [FN47]
For the great majority of retaliatory arrest cases, therefore, liability will turn on whether
the plaintiff can satisfy the third prong and, if so, whether the defendant officer can rebut the
prima facie case by showing that she would have reached the same decision in the absence of
the *762 protected conduct. These two questions turn on a single issue: causation. Fortu-
nately, this crucial element has been squarely addressed by the Supreme Court in Mt. Healthy.
[FN48]
B. Causation: The Mt. Healthy Decision
Mt. Healthy involved an untenured teacher who was fired by his school board after he
conveyed the contents of an internal school memorandum to a radio station. [FN49] The
Board had listed the radio station broadcast as one of the two reasons for firing the teacher.
[FN50] The teacher sued, claiming, inter alia, that the school board's decision to fire him viol-
ated his rights under the First and Fourteenth Amendments. [FN51] The Supreme Court ruled
that a plaintiff can establish a prima facie case of First Amendment retaliation by showing that
her conduct was constitutionally protected, and that her conduct was a substantial factor or,
in other words, a motivating factor in the decision to take adverse action. [FN52] But after a
plaintiff established this prima facie case, the trial court must allow the defendant to prove by
a preponderance of the evidence that it would have reached the same decision . . . even in the
absence of the protected conduct. [FN53] The Court noted that without this rebuttal, a retali-
ation claim could place an employee in a better position as a result of *763 the exercise of
constitutionally protected conduct than he would have occupied had he done nothing. [FN54]
1. The Prima Facie Case.--While the precise quanta of proof required to state a prima facie
case is somewhat unclear, [FN55] the Mt. Healthy opinion establishes several clear principles.
First, a plaintiff is not required to show that the retaliatory motive dwarfed all other factors.
[FN56] The phrase a substantial factor, as distinguished from the substantial factor,
clearly contemplates that a decision may be the product of more than one substantial factor.
[FN57] Second, a plaintiff is not required to prove but-for causation to state a prima facie
claim. [FN58] Imposing such a requirement would essentially merge the plaintiff's prima facie
case and the defendant's rebuttal. [FN59] Finally, the opinion suggests that a plaintiff can es-
tablish a prima facie case through either direct or circumstantial evidence. [FN60] The Mt.
Healthy decision does not draw a distinction between *764 the two forms of evidence, and it
would be unreasonable to restrict a plaintiff to direct evidence, which is likely to be rare.
[FN61]
2. Defendant's Rebuttal.--Once a plaintiff establishes a prima facie case, the burden shifts
to the defendant to prove by a preponderance of the evidence that it would have reached the
same decision . . . even in the absence of the protected conduct. [FN62] Mt. Healthy is clear
that the defendant must prove that she would have reached the same decision in the absence of
the plaintiff's conduct, not that she could have reached this decision--indeed, the plaintiff in
Mt. Healthy was an untenured teacher, and the defendant could have fired him for no reason
whatsoever. [FN63] Thus, Mt. Healthy requires proof that the defendant actually would have
taken the challenged action, rather than mere proof that the action was justified. [FN64]
In practice, the defendant will attempt to prove this counterfactual with evidence showing
that the decision was justifiable on independent grounds. [FN65] But the distinction remains-
-showing that the same decision would have been justified . . . is not the same as proving
that the same decision would have been made. [FN66]
C. Exceptions to Mt. Healthy
The burden-shifting standard that the Court established in Mt. Healthy has become the
standard method of ascertaining retaliatory purpose in constitutional contexts. [FN67] As
courts have adapted the Mt. *765 Healthy rule to a number of different settings, they have oc-
casionally applied modified versions of the causation standard set forth in that case. The Su-
preme Court has rejected some of these changes, [FN68] but it has endorsed others as well.
[FN69]
1. Prisoner Cases.--As in other areas of constitutional law, [FN70] some courts have been
hesitant to apply the full protections of First Amendment retaliation doctrine to prisoners.
There is currently a circuit split regarding the appropriate pleading standard for a retaliation
case brought by a prisoner. In some circuits, the usual Mt. Healthy burden-shifting framework
applies. [FN71] But in other circuits, the burden never shifts from the plaintiff prisoner to
show that the defendant's retaliatory motive was a but-for cause for the adverse action. [FN72]
These courts depart from the burden-shifting framework in Mt. Healthy and leave the burden
with the plaintiff to show that the defendant's actions would not have occurred absent the re-
taliatory motive. [FN73] The Eighth and Ninth Circuits are particularly strict in their pleading
standards, dismissing cases automatically if the allegedly retaliatory action arose from a dis-
ciplinary violation. [FN74]
*766 The courts that depart from Mt. Healthy justify their heightened pleading standards
by referring to the deference accorded to prison officials [FN75] and the need to ensure that
prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the
shield of retaliation around them. [FN76] Some of these courts also rely on the Supreme
Court's decision in Sandin v. Conner, [FN77] which arguably established separate due process
standards for claims filed by prisoners. [FN78]
2. Retaliatory Counterclaims.--Individuals have a First Amendment right of access to the
judicial system, [FN79] and it is unlawful for a government official to retaliate against a
plaintiff for exercising this right. [FN80] Difficult issues arise, however, when the government
official's allegedly retaliatory action is the filing of a counterclaim against the plaintiff. Be-
cause filing a lawsuit in retaliation for protected activity is unlawful, [FN81] it stands to reas-
on that filing a counterclaim should likewise be unlawful. But it is not clear how the govern-
ment can meet its Mt. Healthy burden to show that it would have filed the counterclaim in the
absence of the plaintiff's protected conduct, since a counterclaim is, by definition, a response
to the plaintiff's filing a lawsuit. [FN82] Moreover, government officials also enjoy a constitu-
tional right of access to the courts, and arguably cannot be prevented from bringing even a re-
taliatory counterclaim unless the counterclaim is baseless. [FN83]
*767 Once again, courts have split over the proper handling of this issue. The Second and
Fourth Circuits add an intent element to the Mt. Healthy standard in these cases, requiring a
plaintiff to show that the government acted with retaliatory intent. [FN84] The Fifth Circuit
denies such claims outright. [FN85] Other courts require proof that the counterclaim was
without a reasonable basis. [FN86] No court applies an unmodified version of the Mt. Healthy
standard. [FN87]
3. Employment Cases Involving After-Acquired Evidence.--Several forms of employment
discrimination and retaliation are evaluated under the Mt. Healthy framework. [FN88] Under
Mt. Healthy, an employer may not rebut the plaintiff's prima facie case with evidence that it
has discovered only as a result of its decision to terminate the employee. Because the employ-
er would never have discovered this evidence absent its unlawful motive, the employer can
hardly argue that it would have fired the employee if it had acted in a lawful manner.
[FN89] Nevertheless, some courts granted judgment for the employer in cases involving after-
acquired evidence of rsum fraud, [FN90] embezzle-*768 ment, [FN91] or other serious
forms of misconduct. [FN92] These courts reasoned that it would hardly make sense to or-
der [the employee] reinstated to a job which he lied to get and from which he properly could
be discharged for that lie. [FN93]
The Supreme Court overruled these cases in McKennon v. Nashville Banner Publishing
Co., holding that plaintiff employees in after-acquired evidence cases should be permitted to
bring claims for back pay. [FN94] The Supreme Court recognized that it could not require
the employer to ignore the information, but suggested that courts should address this problem
by limiting remedies to backpay from the date of the unlawful discharge to the date the new
information was discovered. [FN95] Although McKennon brings employment cases more
closely in line with Mt. Healthy, the Court did not seem particularly concerned with the fact
that the court below had strayed from the standard. Indeed, the Court held that Mt. Healthy
did not apply at all in its ruling because there was no question that the employer's retaliatory
motive was the only justification for the termination. [FN96]
II. Exceptions to Mt. Healthy
In principle, the application of Mt. Healthy to a retaliatory arrest case should be straight-
forward. After the plaintiff establishes a prima facie case, the defendant must show that they
would have arrested the plaintiff even in the absence of the plaintiff's protected speech.
[FN97] Because police officers do not invariably arrest suspects whenever they have probable
cause, [FN98] evidence of probable cause is insufficient to meet this burden. *769 Under Mt.
Healthy, [t]he presence of probable cause does not determine the action for retaliatory arrest
because it simply provides one possible justification for the challenged arrest, and . . . the
presence of an alternate, non-retaliatory justification for the challenged action does not, as a
matter of law, defeat a retaliation claim. [FN99] There would seem to be no justification for
requiring a plaintiff to prove that the arresting officer lacked arguable probable cause, a re-
quirement the Second, Fifth, Eighth, and Eleventh Circuits currently impose. [FN100]
As the foregoing discussion has demonstrated, however, courts have carved out exceptions
to Mt. Healthy in a variety of contexts, based on a number of evidentiary and policy con-
cerns. In the recent case of Hartman v. Moore, the Supreme Court endorsed a similar excep-
tion to Mt. Healthy in retaliatory prosecution cases. [FN101] Hartman's reasoning may justify
such an exception for certain retaliatory arrest claims.
Part II.A analyzes the important Supreme Court case of Hartman v. Moore, which estab-
lished an exception to Mt. Healthy in retaliatory prosecution cases. Because retaliatory pro-
secution cases are closely analogous to retaliatory arrest cases, Hartman is a useful starting
point for a discussion of the proper pleading standard in retaliatory arrest cases. Part II.B ex-
amines the current circuit split surrounding retaliatory arrest cases in more detail. Part II.C
identifies some problems with this circuit split.
A. Hartman v. Moore
Until 2006, courts were split over the proper application of Mt. Healthy to retaliatory pro-
secution cases. Some circuits required plaintiffs to prove that the prosecution was brought
without probable cause; [FN102] others imposed no such requirement. [FN103] The Supreme
Court resolved the split in Hartman v. Moore, siding with the courts that required plaintiffs to
prove the absence of probable cause. [FN104]
*770 1. Background.--Hartman involved a long-running dispute between a private com-
pany and the U.S. Postal Service. In 1983, the Postal Service announced that it would use
single-line optical scanners to sort its mail. [FN105] The plaintiff, the CEO of a company that
manufactured multiline optical scanners, successfully lobbied Congress and the public to pres-
sure the Postal Service to switch to multiline scanners. [FN106] Shortly thereafter, the Postal
Service investigated the plaintiff and his company, expressing concern that they may have
been linked to an illegal kickback scheme. [FN107] Despite very limited evidence linking
the plaintiff CEO to any wrongdoing, an Assistant U.S. Attorney filed charges. [FN108] The
plaintiff CEO was indicted, but ultimately acquitted when the district court found that there
was a complete lack of direct evidence to link the plaintiff to any wrongdoing. [FN109]
The CEO then filed suit. Since the prosecutor was absolutely immune from liability for
his decision to file charges, [FN110] the plaintiff sued the Postal Service, arguing that high-
ranking Postal Service officials had arranged the prosecution in retaliation for his lobbying
activities. [FN111] The defendants motioned for summary judgment, arguing that the prosecu-
tion was supported by probable cause. [FN112]
2. The Hartman Decision and Its Rationale.--In an opinion by Justice Souter, [FN113] the
Supreme Court held that pleading no probable cause should be a requirement for a retaliatory
prosecution claim. [FN114] Although *771 the ruling was a shift away from Mt. Healthy,
[FN115] the Court did not signal that it was rejecting that standard in general. [FN116] In-
stead, the Court stressed three factors that supported a heightened pleading standard in retali-
atory prosecution cases: complex causation, evidentiary concerns, and the presumption of pro-
secutorial regularity.
The Court first discussed the need to prove a chain of causation from animus to injury in
a case of retaliatory prosecution. [FN117] Retaliatory prosecution differs from the typical re-
taliation case, where the government agent allegedly harboring the animus is also the indi-
vidual allegedly taking the adverse action. [FN118] Because prosecutors are immune from
suit for filing charges, [FN119] plaintiffs must sue other retaliating officials for inducing the
prosecutor to bring suit. [FN120] The need to prove this complex causation supported a re-
quirement that the absence of probable cause be proved and alleged. [FN121]
The Court next noted that evidence about probable cause (or its absence) is likely to serve
as highly probative evidence of retaliatory motive. [FN122] Since evidence of probable cause
will likely emerge in most cases anyway, requiring that it be pled by the plaintiff will impose
little added cost. [FN123] Conversely, evidence of retaliatory motive other than the lack of
probable cause is likely to be rare and consequently [a] poor guide[ ] in structuring a cause of
action. [FN124] Eliminating the no-probable-cause requirement would be a little like pro-
posing that retirement plans include the possibility of winning the lottery. [FN125]
Finally, the Court stated that prosecutors enjoy a longstanding presumption of regularity
in their decisionmaking. [FN126] Though plaintiffs would not be suing prosecutors directly,
[FN127] they would still have to prove *772 that the prosecutor would not have brought the
case in the absence of the retaliating official's influence. [FN128] This would require some
showing to overcome the presumption of regularity.
Taking these three hurdles together, the Court ruled that it makes sense to require a
plaintiff to plead absence of probable cause as part of the prima facie case. [FN129] This blunt
statement leaves little guidance for the lower courts, which have struggled to determine how
broadly Hartman should sweep. [FN130] As a general rule, the Supreme Court tries to resolve
only those constitutional questions that are necessary to the case at hand. [FN131] And the
Hartman Court was very careful to focus on the specific features of retaliatory prosecution
claims. [FN132] Noting this, several lower courts have declined to extend Hartman beyond re-
taliatory prosecution. [FN133]
However, the basic concern that the Court was enunciating--that proving causation in a re-
taliation case is difficult when the defendant can point to a possible legitimate reason for the
decision--is not unique to retaliatory prosecution cases. [FN134] Moreover, the Court did not
clearly indicate*773 that its opinion was to be confined to the prosecution context. [FN135]
Some courts have accepted the invitation to extend Hartman's holding to cases that do not in-
volve retaliatory prosecution. [FN136] This conflict about the scope of Hartman has extended
to the retaliatory arrest context, where courts are still split over the proper role of probable
cause.
B. Hartman's Impact on the Circuit Split Concerning Retaliatory Arrest
Before the Court's ruling in Hartman, the circuits were split about the role that probable
cause should play in a retaliatory arrest claim. Though Hartman has not resolved this split,
and courts continue to disagree over the significance of probable cause in retaliatory arrest
claims, Hartman offers courts additional grounds and guidance for abandoning the burden-
shifting framework articulated in Mt. Healthy. First, it provides another illustration of the
ways in which courts deviate from Mt. Healthy. Second, because the Supreme Court ruled
against the circuits that applied a traditional version of the Mt. Healthy causation standard,
Hartman shows that the Supreme Court is not necessarily opposed to movement away from
that standard. Finally, the Court's ruling in Hartman was based on concerns that are also
present in many retaliatory arrest cases. [FN137]
The question remains, however, under what circumstances this departure is justi-
fied. Should courts adopt an all-or-nothing rule that either accepts or rejects Mt. Healthy
across the board for all retaliatory arrest cases? And if not, when are divergences from Mt.
Healthy appropriate?
1. The Pre-Hartman Split.--Even prior to Hartman, most courts departed from Mt. Healthy
and allowed retaliatory arrest cases to go forward only if the plaintiff could prove that the ar-
resting officer lacked probable cause. The Second, Fifth, Eighth, and Eleventh Circuits all
dismissed claims for retaliatory arrest where the defendant police officer established arguable
probable cause. [FN138] Of the circuits that had considered *774 the issue, only the Tenth
and Sixth Circuits followed Mt. Healthy and treated probable cause (or its absence) as nothing
more than evidence of the defendant officer's intent. [FN139]
The pre-Hartman decisions that imposed a heightened pleading standard did so without
considering the specific problem of First Amendment retaliation, and instead looked to pre-
cedent dealing with Fourth Amendment claims. [FN140] In each of these precedent cases, the
defendants had obtained qualified immunity upon a showing of arguable probable cause.
[FN141] Based on these precedents, the courts concluded that [w]hen a police officer has
probable cause to believe that a person is committing a particular public offense, he is justi-
fied in arresting that person, even if the offender may be speaking at the time that he is arres-
ted. [FN142] Without any further explanation, the courts applied this Fourth Amendment
standard to First Amendment retaliation claims, and dismissed them for failing to disprove
probable cause. [FN143]
However, failure to meet the Fourth Amendment standard does not mean that the plaintiff
has likewise failed to state a First Amendment retaliation case. Probable cause is a defense to
a Fourth Amendment claim, but it does not immunize the officer from claims arising out of
other constitutional provisions, such as claims under the Equal Protection Clause. [FN144]
Accordingly, the courts should have examined First Amendment retaliation law, as set forth in
Mt. Healthy, rather than dismissing*775 the retaliation claim on the basis of Fourth Amend-
ment precedent. [FN145]
2. The Post-Hartman Split.--Hartman's departure from Mt. Healthy in the context of retali-
atory prosecutions demonstrates that the Supreme Court is not wedded to the traditional ver-
sion of the Mt. Healthy causation standard, nor is it opposed to movement away from that
standard. However, the Supreme Court's signal has evoked mixed interpretations among
lower courts faced with retaliatory arrest cases. Retaliatory arrest case law is a mess, with
some courts siding entirely with Hartman, others rejecting Hartman outright, and still others
having yet to take a position. The Eighth and Eleventh Circuits continue to require a showing
of no probable cause, [FN146] and one assumes that the Second and Fifth Circuits will contin-
ue to do so as well. [FN147] The Sixth Circuit, which had previously permitted plaintiffs to
bring claims even if the arresting officer had probable cause, [FN148] initially held that Hart-
man required the contrary rule. [FN149] In a subsequent case, however, the circuit suggested
that the matter might remain open, although it declined to directly address the issue. [FN150]
And the Ninth Circuit, which had not previously ruled on the issue, decided to permit
plaintiffs to bring claims despite the officer's probable cause, Hartman notwithstanding.
[FN151] It remains to be seen whether Hartman will lead the Tenth Circuit to reexamine its
decision to let plaintiffs bring claims against defendants with probable cause. [FN152] The re-
maining courts of appeals still have not addressed the issue. [FN153]
*776 C. Problems with the Current Approach
Although the circuits have taken opposing views on the proper role of probable cause in a
retaliatory arrest claim, [FN154] their decisions all share one common feature: They apply a
uniform pleading standard to all retaliatory arrest cases within that circuit. In other words,
each circuit has selected a uniform pleading standard that applies regardless of the specific
facts of the retaliatory arrest case before it. [FN155]
This all-or-nothing approach is problematic. The rule in the majority of circuits, which re-
quires a plaintiff to plead and prove the absence of probable cause for all retaliatory arrest
cases, is too restrictive. It imposes a heightened pleading standard on plaintiffs even in cases
where none of the concerns raised in Hartman--complex causation, the presumption of regu-
larity, and the lack of alternative evidence [FN156]--is present. The Ninth Circuit's approach,
by contrast, which never requires a showing of no probable cause, [FN157] is too permissive.
It allows plaintiffs to bring claims in cases where one or more of the concerns raised in Hart-
man are present. The majority rule unduly impinges on speech rights; [FN158] the Ninth Cir-
cuit rule imposes an unjustifiable burden on law enforcement officials. [FN159] *777 Neither
rule is appropriately tailored to reflect the reasoning behind the Supreme Court's holding in
Hartman and the policy concerns that are implicated by retaliatory arrest claims. As a result,
courts will either grant unwarranted leniency to certain retaliatory arrest cases [FN160] or
scrutinize particular claims with excessive rigor, [FN161] and accordingly fail to balance the
needs of law enforcement and the free speech rights of individual citizens.
This all-or-nothing approach is also problematic in that it perpetuates the current circuit
split over retaliatory arrests. Requiring plaintiffs to prove no probable cause is appropriate in
certain types of retaliatory arrest cases, but not others. It is entirely random as to whether the
governing case in each jurisdiction will fall into the first or second category. Accordingly, a
circuit split will naturally develop and worsen as long as each circuit takes an all-or-nothing
approach to retaliatory arrest cases.
Even within a single circuit, an all-or-nothing approach will result in inconsistent doctrine
and unprincipled vacillation between Mt. Healthy and Hartman. This process can be seen at
work in the Sixth Circuit, where there is internal inconsistency in retaliatory arrest case
law. In Barnes v. Wright, the Sixth Circuit was faced with a retaliatory arrest case with com-
plex causation. Because Hartman was the more appropriate rule for the case before it, the
court chose Hartman as the categorical rule for retaliatory arrest cases. [FN162] But less than
a year later, the Sixth Circuit was faced with a retaliatory arrest claim without complex causa-
tion issues. The majority declined to apply Hartman, totally disregarding Barnes. [FN163] The
Sixth Circuit's insistence on categorical rules for retaliatory arrest cases resulted in an internal
split in authority. A similar phenomenon may explain some of the splits between circuits in
First Amendment retaliation law. [FN164] A rule that more narrowly tailors pleading stand-
ards to reflect underlying fact patterns would resolve and avoid the chaos that has character-
ized this area of law.
III. The Proper Role of Probable Cause In Retaliatory Arrest Claims
This Part argues that Hartman and its requirement of no-probable-cause pleading should
apply only to a subset of retaliatory arrest cases--cases of complex causation where a retaliat-
ing government official induces a police officer to arrest the plaintiff, and cases where the po-
lice officer had probable cause to suspect the plaintiff of a felony offense. In *778 all other
cases, Hartman and its concerns fail to justify departure from Mt. Healthy's burden-shifting
framework. This more nuanced standard would more closely reflect the policy concerns iden-
tified in Hartman, and would strike a reasonable accommodation between the needs of law en-
forcement [FN165] and the free speech rights of individual citizens. [FN166]
Part III.A lines up the rationales driving the Hartman decision with the considerations
present in retaliatory arrest cases, and concludes that the justifications for Hartman's
heightened pleading standard extended to retaliatory arrest cases where there is complex caus-
ation and a presumption of regularity. Part III.B discusses another departure from the Mt.
Healthy burden-shifting standard for felony arrest cases. It evaluates the probative value of
requiring plaintiffs to plead probable cause in retaliatory arrest cases, with special attention to
the pleading standards for probable cause and the role of police discretion. Part III.C dis-
cusses the availability of forms of evidence that do not relate to probable cause but can be
used to prove retaliatory animus, and concludes that courts should limit departure from Mt.
Healthy to these two exceptions only. Part III.D synthesizes these discussions into a clear
pleading standard, and addresses some counterarguments to this Note's proposed framework.
A. Aligning the Hartman Decision with Retaliatory Arrests
In distinguishing retaliatory prosecution claims from ordinary First Amendment retaliation
law, the Hartman Court focused on two important factors that make such claims more difficult
to prove than the typical retaliation case: the presumption of prosecutorial regularity, and
complex causation. Hartman's pleading standard was built on the notion that a special sort of
allegation is needed both to bridge the gap between the nonprosecuting government agent's
motive and the prosecutor's action, and to address the presumption of prosecutorial regular-
ity. [FN167] Where there is no gap between motive and action [FN168] and no heightened
presumption of regularity, [FN169] these two justifications for Hartman's heightened pleading
standard vanish. A court could then turn to the standard pleading rules set forth in Mt.
Healthy. [FN170]
1. Complex Causation.--In the typical retaliation case, the government agent allegedly
harboring the animus is also the individual allegedly taking the adverse action. [FN171]
However, in complex causation cases, the defendant induces another party to take action
against the plaintiff. [FN172] *779 Accordingly, the plaintiff must shoulder a heavy burden to
show a link between animus and action. [FN173] This is a more onerous burden than a
plaintiff faces in an ordinary retaliation case, where courts have long taken proof of animus
and adverse action as a circumstantial demonstration that the one caused the other. [FN174]
The majority of retaliatory arrest claims do not involve this complex causation, though
there are exceptions. In the typical retaliatory arrest case, a police officer makes a warrantless
arrest, and the plaintiff subsequently claims that the officer was acting out of retaliatory anim-
us. [FN175] No intervening actor is present to break the chain of causation. In some cases,
however, the alleged retaliation comes from public officials who pressure or conspire with po-
lice officers to arrest the plaintiff in retaliation for protected speech. [FN176] There are also
cases where the defendant officers seek a warrant from a magistrate or an indictment from a
grand jury before making the arrest. [FN177] These two categories of cases strongly implicate
the complex causation concerns that the Court identified in Hartman. In these cases, where the
retaliating official is not the official making the arrest, [FN178] Hartman is directly implic-
ated, and courts should require a pleading of no probable cause, both as a matter of precedent
and as a matter of policy. The plaintiff must create a link between one official's animus and
another official's action, a difficult burden that justifies a heightened pleading standard.
[FN179] Admittedly, this heightened standard might screen out some cases where the link
between the retaliating *780 official and the arresting officer is clear. [FN180] But the same
might be said about Hartman, where the plaintiff produced the proverbial smoking gun to
show evidence of a causal link. [FN181]
2. The Presumption of Validity.--As the Hartman Court noted, absent clear evidence to the
contrary, courts presume that prosecutors have properly discharged their official duties.
[FN182] The decision to prosecute has long been regarded as the special province of the Ex-
ecutive Branch, and courts have been hesitant to interfere with this core executive function.
[FN183] Furthermore, the decision to prosecute involves policy concerns, such as the proper
allocation of enforcement resources, that are not readily susceptible to judicial review.
[FN184] For these reasons, the pleading standards for allegations of prosecutorial misconduct
have always been strict. [FN185] Logically, a plaintiff seeking to show that a prosecutor's
*781 decision was tainted by the undue influence of another government official should simil-
arly face a heightened pleading standard. [FN186]
To a certain extent, the same reasoning applies to retaliatory arrest cases. Courts grant all
public officials, including police officers, a presumption of regularity in conducting their offi-
cial duties. [FN187] Moreover, the decision to make an arrest, no less than the decision to pro-
secute, may involve competing policy concerns that are not well suited to judicial review.
[FN188] Though these considerations might suggest that Hartman's logic extends to all retali-
atory arrest cases, [FN189] it is important to note that the Hartman decision focused specific-
ally on the presumption of validity that attaches to prosecutorial decisions--it did not merely
invoke the general presumption of validity accorded to all public officials. [FN190] After all,
if the general presumption of validity were enough to defeat a retaliation claim, First Amend-
ment retaliation doctrine would be reduced to practically nothing. [FN191] And in practice,
courts rarely invoke a blanket presumption of validity on behalf of police officers. [FN192]
Instead, courts *782 generally accord varying degrees of deference to police searches and
seizures, depending on such factors as whether a warrant was obtained or where the search or
seizure took place. [FN193] For example, courts are willing to presume that an arrest made
with a warrant was supported by probable cause, [FN194] but will apply greater scrutiny when
the arrest is made without a warrant. [FN195] Without expressly repudiating the presumption
of validity that nominally attaches to police actions, most courts remain sensitive enough to
concerns about police misconduct to seriously evaluate the legality of the arrest. [FN196]
An arrest made pursuant to a warrant or a grand jury indictment enjoys a presumption of
validity [FN197] and, in the spirit of Hartman, should justify a departure from Mt. Healthy's
approach. Courts presume that such arrests are legal, [FN198] a presumption that closely re-
sembles the presumption of validity that attaches to prosecutorial activity. [FN199] In war-
rantless arrest cases, by contrast, police officers do not benefit from heightened judicial defer-
ence. [FN200] Courts should therefore follow Hartman and require plaintiffs to plead the ab-
sence of probable cause only in retaliatory arrest cases where the arrest is made pursuant to a
warrant or grand *783 jury indictment. Since these cases also involve complex causation, this
reinforces the argument that a heightened pleading standard is required for complex causation
cases, and does not require a separate exception.
B. The Evidentiary Value of Probable Cause
As a matter of precedent, a court might reasonably leave the matter there, and conclude
that Hartman does not apply to retaliatory arrest claims that do not involve complex causation
or a heightened presumption of regularity. [FN201] A court could then turn to the standard
pleading rules set forth in Mt. Healthy. [FN202]
Yet as noted above, courts do not always apply an unaltered version of Mt. Healthy, even
in cases where the Supreme Court has not carved out a specific exception. [FN203] Moreover,
in Hartman, the Court gave probable cause a special evidentiary role [b]ecause showing an
absence of probable cause will have high probative force, and can be made mandatory with
little or no added cost. [FN204] Even if not bound to do so by Hartman, a court might choose
to require plaintiffs to show no probable cause in retaliatory arrest cases out of deference to
the high probative force that probable cause carries. This section addresses this argument,
and concludes that courts should only require a showing of no probable cause in felony arrest
cases.
1. The Standard for Probable Cause.--For present purposes, the evidentiary value of prob-
able cause depends on its usefulness in distinguishing between cases where the defendant ac-
ted out of retaliatory motive and cases where the defendant would have arrested the plaintiff
in the absence of any retaliatory animus. [FN205] This question in turn depends on how easily
a police officer can mask animus behind a screen of probable cause. There is reason to believe
that probable cause is not well suited to the task of identifying unlawful retaliation in misde-
meanor arrest cases, *784 because it requires nothing more than a hypothetically rational
basis for intrusions on individual liberty. [FN206]
Commentators argue that the standard does little more than to prevent irrational police ac-
tion. [FN207] Probable cause is found where the facts and circumstances within [the arrest-
ing officers'] knowledge and of which they had reasonably trustworthy information [are] suffi-
cient in themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed. [FN208] Probable cause does not demand any showing that
such a belief [is] correct or more likely true than false. [FN209] Courts emphasize practical
considerations and reasonableness [FN210] in order to provide a workable standard to regu-
late day-to-day police activity. [FN211] But while probable cause is intended to protect indi-
viduals*785 from arbitrary or groundless arrests, [FN212] an officer can generally rely on the
standard's flexibility to overcome any challenge to a determination of probable cause. The of-
ficer can point to any objective facts that might have justified the arrest, [FN213] and need
only show that these facts would lead a reasonable person to have more than bare suspicion
that an offense has been committed. [FN214] This has led some, including Justice Stevens, to
argue that probable cause requires nothing more than a hypothetically rational basis for intru-
sions on individual liberty. [FN215]
This already lax standard is further weakened in civil suits against police officers, where
the doctrine of qualified immunity limits the probable cause standard. Under qualified im-
munity, police officers are immune from suit insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known. [FN216] For the purposes of qualified immunity, a right is only clearly established if
a reasonable officer would understand that what she is doing violates that right. [FN217] The
right to be free from retaliation for the exercise of First Amendment freedoms is one example
of a clearly established right. [FN218] In effect, qualified immunity protects all but the
plainly incompetent or those who knowingly violate the law. [FN219] Since this burden of
proof is relatively low, there is reason to doubt that probable cause will always be strong evid-
ence of a legitimate motive in a retaliation case.
2. The Evidentiary Problem of Police Discretion.--Even laying these problems to the side,
there is another reason to believe that probable cause will be of low evidentiary
value. Proving that an officer had probable cause to make an arrest establishes a possible le-
gitimate justification for the officer's action, but this is not the burden of proof that Mt.
Healthy requires. [FN220] The defendant must show that she would have made the arrest ab-
sent her retaliatory motive, not that she had probable cause and could have made the arrest.
Probable cause is only one factor that may prompt a police officer to make an arrest, and it
is often eclipsed by other factors. Police officers *786 enjoy significant discretion to refrain
from arresting a suspect, even when they have probable cause to make the arrest. [FN221] In a
world of limited resources, a police officer cannot arrest every suspect. [FN222] And even
when it is possible to make the arrest, an officer might refrain from taking the suspect into
custody for several reasons: to honor a victim's request for leniency, [FN223] to secure in-
formation from an informant, [FN224] or simply to let an offender go free where an arrest
would be impractical. [FN225]
The discretion not to take a suspect into custody is so ingrained in the practice of law en-
forcement that it may exist despite statutory language to the contrary. Every state has long-
standing statutes that require police officers to arrest suspects in certain circumstances.
[FN226] In some states, these statutes impose a mandatory duty upon police officers to arrest
anyone who has committed any crime, [FN227] while others are limited to enumerated of-
fenses [FN228] or crimes of domestic violence. [FN229] Read literally, *787 these statutes
seem to significantly restrain police discretion. Nevertheless, the U.S. Supreme Court ruled in
Town of Castle Rock v. Gonzales that even a statute providing that officers shall arrest any-
one suspected of violating a restraining order was not truly mandatory. [FN230] In reaching
this conclusion, the Court noted that a well established tradition of police discretion has long
coexisted with apparently mandatory arrest statutes. [FN231]
For minor offenses, releasing a suspect is not simply a legally permissible exercise of po-
lice discretion; it is a common practice. Studies of police behavior suggest that when it comes
to minor offenses--such as disorderly conduct or public intoxication--a police officer views an
arrest as one resource among many that he may use to deal with disorder, but . . . not the only
or even the most important. [FN232] It is a rare exception that the law is invoked merely be-
cause the offender has technically violated the statute, and an arrest is typically used only
when other means for controlling the troublesome aspects of some person's presence are not
available. [FN233] When an officer does choose to make an arrest*788 for a minor offense, it
is likely that some factor has led the officer to conclude that the exceptional solution of an ar-
rest was needed. [FN234] To the extent these studies are true, then at least for minor offenses,
probable cause is not particularly probative evidence of what the defendant officer would have
done, absent the plaintiff's protected speech. And if other evidence suggests that the plaintiff's
protected speech was what led the officer to make the arrest, the argument for allowing the
plaintiff to take the case to the jury without a showing of probable cause is strong.
The case law supports the argument that probable cause for a misdemeanor offense is easy
to allege, and that defendant officers use misdemeanor crimes as pretexts for retali-
ation. Retaliatory arrest cases abound with situations in which the plaintiff was arrested with
probable cause, only to be acquitted on subsequent criminal charges. [FN235] Equally fre-
quent are cases in which the plaintiff was arrested for offenses--such as disturbing the peace
or a minor traffic violation--that do not usually result in arrest. [FN236] In these cases, the
evidentiary value of probable cause is not *789 high enough to justify a departure from the
Mt. Healthy pleading standards. [FN237]
3. The Evidentiary Value of Probable Cause in Felony Cases.--Although the foregoing dis-
cussion demonstrates that probable cause is of limited value in misdemeanor cases, this does
not mean that probable cause can never play an important evidentiary role. If the offense is
more severe--such as a felony-- it will generally be more difficult for the officer to point to
evidence that the plaintiff committed the unlawful act. [FN238] And if the officer did in fact
have probable cause to arrest the plaintiff for a felony, it is much more likely that she would
have arrested the plaintiff in any event. [FN239] For retaliation cases involving serious of-
fenses or plaintiffs who are physically confrontational, [FN240] the likelihood that the officer
would choose not to make an arrest is slight, and probable cause is of greater evidentiary
value.
The challenge for a court is to sort out these cases, ex ante, from cases where probable
cause does not play a strong evidentiary role. A court could do so by requiring plaintiffs to
plead and prove the absence *790 of probable cause only in felony cases. This standard would
arguably fail to capture some serious offenses, such as misdemeanor assault, where probable
cause also has high probative value. [FN241] But drawing the line at felonies would ensure
that minor offenses would not be unjustifiably drawn into the no-probable-cause rule, while
leaving courts free to deal with meritless misdemeanor cases through tools such as summary
judgment. [FN242]
C. The Availability of Alternative Evidence
The limited value of probable cause is only one side of the argument, however. In Hart-
man, the Court also reasoned that a no-probable-cause rule would be essentially costless be-
cause a plaintiff would rarely be able to prove causation without resort to evidence about
probable cause. [FN243] A brief survey of the retaliatory arrest case law reveals that this
premise is unsound in the retaliatory arrest context. Plaintiffs in retaliatory arrest cases are of-
ten able to present compelling evidence of retaliatory animus, without resort to issues of prob-
able cause. Thus, the lack of alternative evidence does not counsel for any further departure
from the Mt. Healthy pleading standards beyond the retaliatory arrest cases that directly raise
Hartman's policy concerns and that involve an underlying felony.
1. Direct Evidence.--With some frequency, plaintiffs in retaliatory arrest cases are able to
point to specific statements, made by the arresting officer, that clearly reveal retaliatory anim-
us. Many of these cases involve police officers who threatened to arrest the plaintiffs if they
did not desist from their speech activities. [FN244] In other cases, police officers, after mak-
ing the arrest, explained that their actions were motivated by the plaintiffs' speech. [FN245]
The case of Torries v. Hebert is an illustrative example of *791 both forms of evidence.
[FN246] In Torries, the plaintiffs owned a skating rink, and played gangster rap music for
their customers. [FN247] When the police came to break up a fight at the rink, they seized the
music and threatened to arrest the plaintiffs if they did not close the rink until further notice.
[FN248] The plaintiffs were later arrested for contributing to the delinquency of a minor.
[FN249] The defendant officer not only informed the plaintiffs that they were being arrested
for the content of the music they played, but he also expressed as much in a letter to local
members of the clergy. [FN250] The defendant officer also informed the plaintiffs that they
would be re-arrested if they played this music again. [FN251] This sort of evidence leaves no
doubt that the police officer was arresting the plaintiffs on the basis of their speech. [FN252]
2. Circumstantial Evidence.--Aside from this direct evidence, the plaintiff may be able to
produce circumstantial evidence to prove retaliatory intent. One particularly strong form of
circumstantial evidence is proof that the defendant had a motive to retaliate against the
plaintiff. The plaintiff may be able to show that the defendant officer carried a grudge against
her for her prior exercise of protected speech. A particularly dramatic example of this evid-
ence is found in Bennett v. Hendrix, in which business owners supported a referendum to re-
duce the powers of the local sheriff's office. [FN253] In addition to threatening the plaintiffs
with arrest and subjecting them to close police scrutiny, [FN254] the sheriff's office mailed
more than 35,000 campaign fliers defaming them as Convicted Criminals, Real Crimin-
als, members of a Chain Gang and the Same Type of Criminals That Terrorize Forsyth
County. [FN255] In light of this *792 evidence, it is hard to believe that the referendum
would not be a substantial factor on the defendant officers' minds at the time of an arrest.
Bennett is an unusual case, and it is rare to find such clear background evidence that the
defendant officer was brimming over with unconstitutional wrath toward the plaintiff's
speech. [FN256] It is not infrequent, however, to find something that would give the officer a
strong motive to retaliate against the plaintiff--most commonly, a complaint or civil suit
against the officer. [FN257] Many cases also involve personal insults directed at the officers.
[FN258] Unlike direct evidence of retaliatory animus, [FN259] this evidence does not neces-
sarily prove wrongdoing on the part of the officer, and courts should be careful not to impose
liability on an officer simply because the plaintiff has said or done something provocative.
[FN260] Evidence of motive may be sufficient, however, if the plaintiff can point to other
forms of direct or circumstantial evidence.
Another form of circumstantial evidence is proof that the plaintiff was arrested while sim-
ilar offenders were let free. Consider the case of Bethel v. Escambia County. [FN261] The
plaintiffs in Bethel alleged that the sheriff's office had threatened to arrest them for preaching
and panhandling without a permit. [FN262] They further alleged that the sheriff's office had
permitted secular organizations to engage in similar demonstrations, without requiring permits
or threatening the demonstrators with arrests. [FN263] The plaintiffs would have had strong
evidence of retaliatory motive*793 if the sheriff's office had carried out these threats. Stand-
ing alone, such evidence of disproportionate impact might not be enough to state a claim,
since the Supreme Court has indicated that disproportionate impact alone does not prove im-
proper intent. [FN264] But coupled with additional evidence of retaliatory intent, selective ar-
rest can serve as highly probative evidence that the arrest was made in retaliation for protected
speech. [FN265]
One final form of circumstantial evidence, relied upon heavily in employment cases, is
evidence of temporal proximity between the protected action and the alleged retaliation. In
employment cases, causation may be shown by proof that the protected activity was followed
closely by the adverse action. [FN266] Temporal proximity is perhaps less fitting in the typic-
al retaliatory arrest case. An officer investigating suspicious conduct will almost always make
the arrest shortly after her initial interactions with the plaintiff, whether or not retaliatory
motive is present. And some courts have suggested that allowing claims to proceed based
solely on proof of temporal proximity would make retaliatory arrest cases too easy to plead.
[FN267] But even in retaliatory arrest cases, courts have been willing to entertain evidence
that the plaintiff was arrested immediately after an antagonistic statement as proof of retaliat-
ory intent. [FN268] At a minimum, temporal proximity can be corroborative of other evidence
of retaliatory intent.
*794 Taken together, these five forms of evidence--verbal threats, verbal statements of in-
tent, motive to retaliate, disproportionate impact, and temporal proximity--create a large body
of alternative evidence in retaliatory arrest cases. The lack of alternative evidence does not re-
quire any further departure from Mt. Healthy.
D. Counterarguments
Drawing these arguments together, courts should require a showing of no probable cause
only in cases involving complex causation or felony arrests. This more nuanced standard
would more closely reflect the policy concerns identified in Hartman, and would strike a reas-
onable balance between the needs of law enforcement and the rights of individual citizens.
The remainder of this section addresses counterarguments to this intermediate standard.
1. Arguments in Favor of a Blanket Hartman Rule.--The Second, Fifth, Eighth, and Elev-
enth Circuits currently apply Hartman's no-probable-cause requirement to retaliatory arrest
cases. [FN269] Although the argument that such a holding is required as a matter of precedent
has already been rebutted, [FN270] one could argue that the Hartman rule nevertheless saves
government officials the time and expense of defending against meritless claims.
A rule that allows most retaliation claims to be brought, despite probable cause, may bur-
den government officials, because [r]etaliation claims may be fabricated easily. [FN271]
Although summary judgment may help to weed out some improper cases, [FN272] the Mt.
Healthy framework is a highly fact-intensive standard that often requires a jury trial. [FN273]
Even if the defendant wins at trial, the time and expense that must be expended to defend
against the claim may be considerable. And while retaliatory arrest claims are relatively rare,
[FN274] the risk of a retaliation claim might deter police officers from making valid arrests.
To paraphrase the Fifth Circuit's observation about retaliation claims brought by prisoners,
courts *795 should not allow suspects to inappropriately insulate themselves from [arrests]
by drawing the shield of retaliation around them. [FN275]
However, the argument that the objectives of law enforcement take primacy over the cit-
izen's right to avoid retaliation [FN276] is largely a false dilemma. Retaliation doctrine does
not prevent an officer from making any arrests that they would have made in the absence of
protected speech. [FN277] And the purpose of retaliation doctrine is to prevent police officers
from substituting personal animosity for legitimate law enforcement objectives. [FN278] If a
police officer would not have made the arrest in the absence of the protected speech, there is
no sound reason for a court to encourage the officer to instead make the arrest.
Additionally, by screening out cases involving complex causation or felony arrests, the
courts can offer some protection for police officers facing meritless retaliatory arrest
claims. In other situations, courts can rely on more traditional screening methods: qualified
immunity, [FN279] motions for summary judgment, and sanctions for frivolous lawsuits.
[FN280]
An across-the-board Hartman rule is particularly problematic because plaintiffs who can-
not establish the absence of probable cause are those who need First Amendment retaliation
doctrine the most. A plaintiff who has been arrested without probable cause may state a claim
for false arrest, even without proof that the defendant officer was acting with retaliatory in-
tent. [FN281] The Fourth Amendment, by constraining unreasonable police action, also
provides protection against such violations of First Amendment freedoms. [FN282] But the
Fourth Amendment cannot stop a police officer from abusing an otherwise reasonable arrest to
crush First Amendment freedoms. Given the wide reach of many criminal statutes, [FN283]
the potential for abuse is large.
2. Arguments in Favor of a Blanket Mt. Healthy Rule.--Some courts adhere to the Mt.
Healthy decision and permit plaintiffs to bring claims *796 without first showing that the de-
fendant officer lacked probable cause. Perhaps the strongest argument in favor of this rule is
that courts are bound to follow a controlling Supreme Court precedent until it is explicitly
overruled by that Court. [FN284] Because probable cause does not demonstrate what the de-
fendant officer would have done in the absence of the plaintiff's protected speech, [FN285]
there is no justification for requiring plaintiffs to demonstrate its absence in complex causa-
tion or felony cases. [FN286] Any rule to the contrary would disregard Mt. Healthy, a binding
Supreme Court precedent.
However, there are numerous exceptions to Mt. Healthy, some of which have been de-
veloped among the federal courts without any urging from the Supreme Court. [FN287] Hart-
man can be read to uphold these departures, since the Court affirmed a rule that carved out an
exception to Mt. Healthy. [FN288] Although it is difficult to identify a clear rationale or legal
principle to support these deviations from precedent, it is clear that a resort to Mt. Healthy's
precedential force is not sufficient to justify a categorical Mt. Healthy rule in the retaliatory
arrest context.
Aside from this argument based on precedent, there is a concern that screening out felony
cases or complex causation cases will unfairly deny plaintiffs a remedy. The Supreme Court
has indicated that courts should rely on qualified immunity, [FN289] rather than heightened
pleading standards, to protect public officials from the threat of meritless lawsuits. [FN290]
Since qualified immunity already provides extensive protection to public officials, the need to
further immunize public officials from liability cannot justify a rule that places a thumb on
the defendant's side of the scales when the merits of a claim that the defendant knowingly vi-
olated the law are being resolved. [FN291]
While any heightened pleading standard has the potential to unjustly deny valid claims,
these arguments have been rebutted by Hartman. In retaliatory arrest cases involving complex
causation, courts are bound to follow Hartman as a matter of binding precedent. [FN292] And
although felony cases are not controlled by Hartman, the Hartman Court made clear that a no-
probable-cause requirement could be justified even if some legitimate *797 claims would be
denied thereby. [FN293] Additionally, because it is unlikely that a plaintiff would be able to
meet the Mt. Healthy burden of proof in a felony arrest case, [FN294] denying those claims ex
ante will reduce a burden to police officers without imposing a concomitant burden on
plaintiffs--a pragmatic form of balancing that the Supreme Court clearly approved in Hart-
man.
Conclusion
A standard of proof reflects the value society places on individual liberty. [FN295]
This Note argues that a pleading standard in retaliatory arrest cases that only requires proof of
no probable cause in complex causation cases and felony arrest cases strikes the appropriate
balance between individual liberty and government efficiency. The circuits that categorically
require plaintiffs to plead no probable cause unjustly deny plaintiffs a remedy, impinging on
First Amendment freedoms and leaving injured parties without redress. The circuits which
never require plaintiffs to prove no probable cause leave police officers exposed to liability to
an unnecessary degree, making it too easy for arrestees to fabricate claims of retaliation.
Neither approach is likely to resolve the current circuit split. The intermediate rule this Note
suggests, by contrast, can be applied fairly to the overwhelming majority of retaliatory arrest
claims, and may help the circuits to address the splits that have characterized First Amend-
ment retaliation law.
[FN1]. Greene v. Barber, 310 F.3d 889, 892-93 (6th Cir. 2002).
[FN2]. Id.
[FN3]. Id.
[FN4]. Id.
[FN5]. Id.
[FN6]. Id.
[FN7]. Id.
[FN8]. Id.
[FN9]. Id.
[FN10]. Id.
[FN11]. Id.
[FN12]. Specifically, this step requires plaintiffs to show that (1) they were engaged in con-
stitutionally protected activity, (2) the defendants' actions caused them to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that activity. Keenan
v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
[FN13]. Id.
[FN14]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
[FN15]. Id.
[FN16]. See infra Part I.B.
[FN17]. See, e.g., Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (stating that prisoner
must establish that but for the retaliatory motive the complained of incident--such as the fil-
ing of disciplinary reports as in the case at bar--would not have occurred); Goff v. Burton, 7
F.3d 734, 737 (8th Cir. 1993) (stating that in retaliation case brought by prisoner, plaintiff
must prove that retaliation was the actual motivating factor for the transfer).
[FN18]. 547 U.S. 250 (2006).
[FN19]. See, e.g., Phillips v. Irvin, 222 F. App'x 928, 929 (11th Cir. 2007) (denying retali-
ation claim where police officer had arguable probable cause to arrest plaintiff for dis-
orderly conduct).
[FN20]. The Sixth Circuit found that a respectable argument could be made that Barber had
probable cause to make the arrest. Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002).
[FN21]. See Colin P. Watson, Note, Limiting a Constitutional Tort Without Probable Cause:
First Amendment Retaliatory Arrest After Hartman, 107 Mich. L. Rev. 111, 123 (2008)
(summarizing argument that no-probable-cause rule is inconsistent with Mt. Healthy).
[FN22]. See, e.g., Curley v. Vill. of Suffern, 268 F.3d 65, 72-73 (2d Cir. 2001) (alleging that
officers arrested plaintiff in retaliation for statements criticizing mayor during election cam-
paign).
[FN23]. See id. at 69 (describing plaintiff's arrest for assault).
[FN24]. See Watson, supra note 21, at 115-16 (collecting cases).
[FN25]. This Note identifies five current or past circuit splits. Only two have been resolved.
See infra notes 71-72, 84-87, 89-90, 102-103, 138-139 and accompanying text.
[FN26]. See generally Ann Bartow, When Bias Is Bipartisan: Teaching About the Democratic
Process in an Intellectual Property Law Republic, 52 St. Louis U. L.J. 715, 725 (2008)
(discussing problems with circuit splits).
[FN27]. See, e.g., Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (creating categorical
rule for retaliation cases brought by prisoners).
[FN28]. See Hartman v. Moore, 547 U.S. 250, 252 (2006) ([T]he First Amendment prohibits
government officials from subjecting an individual to retaliatory actions, including criminal
prosecutions, for speaking out.); Crawford-El v. Britton, 523 U.S. 574, 592 (1998) ([T]he
First Amendment bars retaliation for protected speech.).
[FN29]. See Crawford-El, 523 U.S. at 588 n.10 (The reason why such retaliation offends the
Constitution is that it threatens to inhibit exercise of the protected right.); cf. Pickering v. Bd.
of Educ., 391 U.S. 563, 574 (1968) (noting that threat of discharge from employment, while
carrying different impact than criminal sanctions, is nonetheless a potent means of inhibiting
speech). John Milton wrote that subjecting the authors of works found mischievous and li-
belous to punishment by the fire and the executioner will be the timeliest and the most ef-
fectuall remedy that mans prevention can use. John Milton, Areopagitica 64 (Folcroft Press,
Inc. 1969) (1644).
[FN30]. A prior restraint is a governmental restriction on speech or publication before its ac-
tual expression. Black's Law Dictionary 1232 (8th ed. 2004). Retaliation thus differs from a
prior restraint in that the speech in question has already occurred. The Supreme Court has
drawn a solidly grounded distinction between prior restraints and subsequent punish-
ments. Alexander v. United States, 509 U.S. 544, 550 (1993). This is justified, in part, by the
notion that a system of prior restraint is in many ways more inhibiting than a system of sub-
sequent punishment: It is likely to bring under government scrutiny a far wider range of ex-
pression; it shuts off communication before it takes place... [and it] allows less opportunity for
public appraisal and criticism. Thomas I. Emerson, The System of Freedom of Expression
506 (1970). Some authors have critiqued this assumption. See, e.g., William T. Mayton, To-
ward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment,
and the Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245, 246 (1982) ([The] pref-
erence for subsequent punishment over injunctive relief diminishes the exercise of free
speech.).
[FN31]. See Mayton, supra note 30, at 265 (arguing that prior restraint and subsequent punish-
ment function alike in a technical sense by using threat of punishment and litigation costs
to instill compliance).
[FN32]. See Crawford-El, 523 U.S. at 592 ([T]he general rule has long been clearly estab-
lished ... [that] the First Amendment bars retaliation for protected speech ....). Since the right
is clearly established, qualified immunity does not shield a defendant from a claim of retaliat-
ory arrest. See infra notes 216-219 and accompanying text.
[FN33]. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 725 n.20 (1969) (stating that in
claim for retaliation in criminal sentencing, existence of a retaliatory motivation would... be
extremely difficult to prove).
[FN34]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
[FN35]. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). Some circuits phrase the test
somewhat differently. See Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)
(requiring plaintiff to show defendant's retaliatory conduct adversely affected the protected
speech and that there is a causal connection between the retaliatory actions and the adverse
effect on speech); Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (requiring
plaintiff to prove that this adverse action was taken at least in part because of the exercise of
the protected conduct). These distinctions are largely a matter of phrasing, and the Fifth Cir-
cuit's phrasing of the test most closely tracks the generally accepted standard. See Smith, 250
F.3d at 1037 (explaining that to meet taken at least in part standard, plaintiff must be able
to prove that the exercise of the protected right was a substantial or motivating factor in the
defendant's alleged retaliatory conduct).
[FN36]. Mt. Healthy, 429 U.S. at 287.
[FN37]. See, e.g., Greene v. Barber, 310 F.3d 889, 892 (6th Cir. 2002) (calling police officer
obscene name); Provost v. City of Newburgh, 262 F.3d 146, 151-52 (2d Cir. 2001) (same);
Posr v. Court Officer Shield No. 207, 180 F.3d 409, 415 (2d Cir. 1999) (telling police officer
[o]ne day you're gonna get yours).
[FN38]. See, e.g., Greene, 310 F.3d at 895-97 (presenting fighting words defense); Pine
Ridge Recycling, Inc. v. Butts County, 855 F. Supp. 1264, 1275 (M.D. Ga. 1994) (same); El-
brader v. Blevins, 757 F. Supp. 1174, 1182 (D. Kan. 1991) (arguing that plaintiff's speech was
unprotected).
[FN39]. See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (citing Texas v. Johnson,
491 U.S. 397, 408-09 (1989)) (stating that fighting words doctrine has become very lim-
ited).
[FN40]. See City of Houston v. Hill, 482 U.S. 451, 462 (1986) (noting limited application of
fighting words exception when words are addressed to police officers); Dawn Christine
Egan, Case Note, Fighting Words Doctrine: Are Police Officers Held to a Higher Standard,
or per Bailey v. State, Do We Expect No More from our Law Enforcement Officers than We
Do from the Average Arkansan?, 52 Ark. L. Rev. 591, 597 (1999) (arguing that language dir-
ected at officer must be egregious to qualify as fighting words).
[FN41]. For examples of successful fighting words defenses, see Davis v. Twp. of Pauls-
boro, 421 F. Supp. 2d 835, 849 (D.N.J. 2006) (finding no protected speech where plaintiff
yelled about how he was going to mess somebody up); McCormick v. City of Lawrence,
325 F. Supp. 2d 1191, 1201 (D. Kan. 2004) (dismissing retaliatory arrest claim after finding
that repeated personal insults constituted fighting words).
[FN42]. See, e.g., Barnes v. Wright, 449 F.3d 709, 717-18 (6th Cir. 2006) (holding that foul
language and ranting did not rise to level of fighting words); Provost, 262 F.3d at 159-60
(holding that obscene and aggressive language was not fighting words); Posr, 180 F.3d at
415-16 (holding that stating [o]ne day you're gonna get yours could have carried several
plausible meanings that would not involve a threat of violence). In state courts, the fighting
words exception may be given a broader scope. See Burton Caine, The Trouble with
Fighting Words: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and
Should Be Overruled, 88 Marq. L. Rev. 441, 445 (2004) (arguing that state courts have
stretched the fighting words doctrine beyond all recognition, primarily to protect the police
from criticism, with all of the inherent dangers that such an approach presents); Stephen W.
Gard, Fighting Words as Free Speech, 58 Wash. U. L.Q. 531, 565-69 (1980) (arguing that in
state courts fighting words doctrine is invoked almost uniformly in circumstances in which
its application is wholly inappropriate).
[FN43]. In the employment context, where the number of potential injuries, and hence the
number of potential claims, is far greater, the injury requirement plays a larger role in screen-
ing minor claims. See Keenan v. Tejeda, 290 F.3d 252, 258 & n.4 (5th Cir. 2005) (noting in-
jury requirement weeds out minor instances of retaliation). But even in that area, the Supreme
Court has indicated that a slight injury can support a retaliation claim. See Rutan v. Republic-
an Party of Ill., 497 U.S. 62, 75 n.8 (1990) (stating in dicta that even an act of retaliation as
trivial as failing to hold a birthday party for a public employee is actionable if intended to
punish the employee for her speech (internal quotation marks omitted)).
[FN44]. See, e.g., Hansen v. Williamson, 440 F. Supp. 2d 663, 677-78 (E.D. Mich. 2006)
(stating arrest would likely deter person of ordinary firmness). Indeed, a credible threat of ar-
rest is enough to create standing for a First Amendment challenge. See Steffel v. Thompson,
415 U.S. 452, 459 (1974) (holding plaintiff need not expose self to arrest to challenge statute).
[FN45]. Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (upholding summary judg-
ment for defendant where plaintiff continued to engage in protected speech after arrest).
[FN46]. See cases cited supra note 35.
[FN47]. Estate of Morris v. Dapolito, 297 F. Supp. 2d 680, 694 (S.D.N.Y. 2004); see also
Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004) (applying objective
test).
[FN48]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
[FN49]. Id. at 274. The facts of Mt. Healthy did not exactly set the stage for a lax standard of
causation. The plaintiff publicly criticized the school board over the radio, something he ad-
mitted to be wrongful. Brief for Respondent at 5, Mt. Healthy, 429 U.S. 274 (No. 75-1278).
He had previously been reprimanded for obscene and confrontational language. Id. at 7. Yet
while his actions did create cause for the termination, they were not personally antagonistic
toward the school board members, who were apparently unaware of the specific content of the
broadcast. Id. at 5. These facts may well have colored the Court's decision that a borderline
or marginal candidate should not be able to prevent his employer from assessing his per-
formance record and reaching a decision not to rehire on the basis of that record, simply be-
cause the protected conduct makes the employer more certain of the correctness of its de-
cision. Mt. Healthy, 429 U.S. at 286.
[FN50]. Examining the proffered reasons for the firing, the district court found that the school
board was faced with a situation in which there did exist in fact reason... independent of any
First Amendment rights or exercise thereof, to not extend tenure. Mt. Healthy, 429 U.S. at
285 (quoting Petition for Writ of Certiorari at 12a, Mt. Healthy, 429 U.S. 274 (No. 75-1278)).
Concluding that the radio broadcast did play a substantial part in the decision to fire the
teacher, the district court held that even in the face of other permissible grounds the decision
may not stand. Id. at 284. The court of appeals affirmed. Id. at 283.
[FN51]. The plaintiff also alleged violations of procedural due process, a claim easily dis-
posed of after Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), a case in-
volving strikingly similar facts.
[FN52]. Mt. Healthy, 429 U.S. at 287 (internal quotation marks omitted). In a footnote, the
Court indicated that the phrase motivating factor was drawn from the racial discrimination
case of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252, 270-71 (1977), which employed an identical burden-shifting framework. Mt. Healthy,
429 U.S. at 287 n.2.
[FN54]. Id. at 285.
[FN55]. The substantial factor test is a variant of the but-for test that governs most cause-
in-fact issues in the common law of torts, differing only in its allocation of the burden of
proof. Michael Wells, Three Arguments Against Mt. Healthy: Tort Theory, Constitutional
Torts, and Freedom of Speech, 51 Mercer L. Rev. 583, 584 (2000). The Court's use of the
phrase motivating factor suggests a lower burden, however, and courts have split regarding
the proper standard of proof. Compare Hughes v. Stottlemyre, 454 F.3d 791, 797 (8th Cir.
2006) (requiring plaintiff to show that retaliatory motive played a part in the adverse employ-
ment action), with Boldin v. Limestone County, 152 F. App'x 841, 845-46 (11th Cir. 2005).
[FN56]. Gierlinger v. Gleason, 160 F.3d 858, 868 (2d Cir. 1998); see also Price Waterhouse v.
Hopkins, 490 U.S. 228, 259 (1989) (White, J., concurring) (stating plaintiff is not required to
prove that the illegitimate factor was the only, principal, or true reason for petitioner's ac-
tion), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074.
[FN57]. Bowen v. Watkins, 669 F.2d 979, 984 (5th Cir. 1982).
[FN58]. See Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir. 2004) (collecting cases). Only the
Second Circuit requires plaintiffs to show that the adverse action would not have been taken
absent [their] protected speech. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Even in
the Second Circuit, a test of but-for causation is not always applied. Compare Gilligan v.
Town of Moreau, 234 F.3d 1261, 2000 WL 1608907 (2d Cir. Oct. 25, 2000) (unpublished ta-
ble decision) (applying but-for approach), with Cioffi v. Averill Park Cent. Sch. Dist. Bd. of
Educ., 444 F.3d 158, 162 (2d Cir. 2006) (not requiring but-for causation).
[FN59]. See Spiegla, 371 F.3d at 941 (stating that this approach requires the plaintiff to carry
so much of the burden that nothing remains to shift to the defendant to prove); Martin J.
Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate
Treatment Law, 94 Geo. L.J. 489, 503 (2006) (stating that motivating factor test was unam-
biguously designed to be less restrictive than the but for test).
[FN60]. See Allen v. Iranon, 283 F.3d 1070, 1074-75 (9th Cir. 2002) (collecting cases). The
Eighth Circuit departs from this rule, using the Mt. Healthy framework only if the plaintiff's
prima facie case is built on direct evidence. See Graning v. Sherburne County, 172 F.3d 611,
615 n.3 (8th Cir. 1999) (stating that Mt. Healthy analysis applies only when plaintiff provides
evidence that directly reflects improper motive).
[FN61]. See Meyer v. Bd. of County Comm'rs, 482 F.3d 1232, 1244 (10th Cir. 2007) (noting
that direct evidence of retaliatory motive is rarely available, and courts must consider reason-
able inferences that may be drawn from available evidence).
[FN62]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also
Michael S. Wolly, What Hath Mt. Healthy Wrought?, 41 Ohio St. L.J. 385, 393-94 (1980)
(describing Mt. Healthy's emphasis on proof that defendant would have reached same decision
as unequivocal).
[FN64]. See, e.g., Webster v. Dep't of the Army, 911 F.2d 679, 697-98 (Fed. Cir. 1990)
(rejecting argument that defendant can meet Mt. Healthy burden by showing that hypothetical
supervisor would have taken same action); Fujiwara v. Clark, 703 F.2d 357, 361 (9th Cir.
1983) (The mere existence of other grounds for firing does not suffice. What is necessary is
that the school officials show that those grounds would have caused them to take the same ac-
tion in the absence of the protected conduct.).
[FN65]. See, e.g., Webster, 911 F.2d at 681-85 (producing evidence that terminated employee
was insubordinate and disrespectful).
[FN66]. Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979) (quoting Ayers v. W.
Line Consol. Sch. Dist., 555 F.2d 1309, 1315 (5th Cir. 1977)).
[FN67]. Julian Cyril Zebot, Note, Awakening a Sleeping Dog: An Examination of the Confu-
sion in Ascertaining Purposeful Discrimination Against Interstate Commerce, 86 Minn. L.
Rev. 1063, 1067 (2002); see also Texas v. Lesage, 528 U.S. 18, 21 (1999) (per curiam) (Our
previous decisions on this point have typically involved alleged retaliation for protected First
Amendment activity rather than racial discrimination, but that distinction is immaterial.);
Price Waterhouse v. Hopkins, 490 U.S. 228, 248-50 (1989) (applying Mt. Healthy to employ-
ment discrimination cases), superseded by statute, Civil Rights Act of 1991, Pub. L. No.
102-166, 105 Stat. 1071; Wright Line, 251 N.L.R.B. 1083, 1083 (1980), enforced on other
grounds, 662 F.2d 899 (1st Cir. 1981) (applying Mt. Healthy to cases of discharge in retali-
ation for union activity).
[FN68]. See Lesage, 528 U.S. at 20-21 (overturning lower court for failing to apply Mt.
Healthy's but-for causation rule).
[FN69]. See Hartman v. Moore, 547 U.S. 250, 261 (2006) (requiring plaintiffs to demonstrate
prosecutor brought action without probable cause to state claim for retaliatory prosecution);
McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995) (allowing defendant
to escape liability in part if, hypothetically, they would have fired plaintiff had they known of
plaintiff's wrongdoing before claim was filed).
[FN70]. See, e.g., Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (applying special atypical
and significant hardship standard to due process claim by prisoner); Peter L. Strauss et al.,
Gellhorn & Byse's Administrative Law 828-32 (10th ed. 2003) (suggesting that Court might
apply a special due process doctrine for prison cases); Susan N. Herman, Slashing and Burn-
ing Prisoners' Rights: Congress and the Supreme Court in Dialogue, 77 Or. L. Rev. 1229,
1252 (1998) (arguing that in Sandin the Supreme Court took dramatic measures to impose a
special burden on prisoners litigating due process claims).
[FN71]. See Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001) (adopting Mt. Healthy bur-
den-shifting framework); Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (same);
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (same); Graham v. Henderson, 89 F.3d
75, 80 (2d Cir. 1996) (same).
[FN72]. See McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (noting that plaintiff will face
substantial burden to prove actual motivating factor for transfer was retaliatory); sources cited
supra note 17.
[FN73]. See McDonald, 610 F.2d at 18 (Plaintiff must prove that he would not have been
transferred but for the alleged reason.).
[FN74]. See Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003) (citing Mt. Healthy but
stating that prison administrators cannot be held liable unless retaliatory action did not ad-
vance legitimate goals of the correctional institution or was not tailored narrowly enough to
achieve such goals (quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995))); Orebaugh
v. Caspari, 910 F.2d 526, 528 (8th Cir. 1990) ([N]o claim can be stated when the alleged re-
taliation arose from discipline imparted for acts that a prisoner was not entitled to perform.).
[FN75]. See Vance, 345 F.3d at 1093 (stressing need to grant deference and flexibility to pris-
on officials).
[FN76]. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
[FN77]. 515 U.S. 472 (1995). For a discussion of Sandin, see sources cited supra note 70.
[FN78]. See Pratt, 65 F.3d at 807 (noting that courts should evaluate retaliation claims in
light of these general concerns expressed in Sandin); Thomas v. Walton, 461 F. Supp. 2d
786, 795 (S.D. Ill. 2006) (noting that courts should resolve retaliation cases in light of the
general tenor of Sandin).
[FN79]. See James F. Pfander, Sovereign Immunity and the Right to Petition: Toward a First
Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899
passim (1997) (detailing First Amendment right to seek judicial redress).
[FN80]. See, e.g., Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003) (retaliating against
prisoner for filing lawsuits or grievances is unlawful).
[FN81]. See, e.g., Smith v. Garretto, 147 F.3d 91, 94-95 (2d Cir. 1998) (stating that govern-
ment's retaliatory initiation of lawsuits violates First Amendment).
[FN82]. The Second Circuit has found this concern to be persuasive, reasoning that straight-
forward application of the Mt. Healthy standard would mean that the filing of counterclaims
by a governmental entity would subject that entity to strict liability. Greenwich Citizens
Comm., Inc. v. Counties of Warren, 77 F.3d 26, 30-31 (2d Cir. 1996). This may be somewhat
hyperbolic. A court could avoid a strict liability standard by asking whether the government
would have filed the lawsuit for a purpose other than punishing the plaintiff. The government
could meet this burden by showing a legitimate, nonretaliatory reason for the counterclaim,
such as a desire to win monetary damages.
[FN83]. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 528-37 (2002) (discussing First
Amendment problems in regulating lawsuits filed in retaliation for union activities); Bill John-
son's Rests., Inc. v. NLRB, 461 U.S. 731, 741-43 (1983) (same); Darveau v. Detecon, Inc.,
515 F.3d 334, 341 (4th Cir. 2008) (citing BE & K for principle that only those lawsuits that
are retaliatory in intent and baseless in fact or law do not implicate First Amendment and fed-
eralism concerns).
[FN84]. Greenwich Citizens Comm., Inc., 77 F.3d at 30-31; see also Darveau, 515 F.3d at 341
(requiring proof that defendant acted with retaliatory motive).
[FN85]. See Venable v. Keever, 263 F.3d 162, 2001 WL 803565, at *2 (5th Cir. June 12,
2001) (unpublished table decision) (dismissing claim that counterclaim was act of First
Amendment retaliation as frivolous).
[FN86]. See Harper v. Realmark Corp., No. 4:04-CV00040, 2004 WL 1795392, at *5 (S.D.
Ind. July 29, 2004) (permitting retaliation claim where counterclaim was allegedly frivolous);
Rosania v. Taco Bell of Am., Inc., 303 F. Supp. 2d 878, 886-87 (N.D. Ohio 2004) (retaliatory
counterclaim must be objectively baseless).
[FN87]. It would arguably violate the First Amendment to apply an unmodified Mt. Healthy
test. See supra note 83 and accompanying text.
[FN88]. See Wright Line, 251 N.L.R.B. 1083, 1091 (1980), enforced on other grounds, 662
F.2d 899 (1st Cir. 1981) (applying Mt. Healthy causation standard to discrimination based on
labor activities). In NLRB v. Transportation Management Corp., the Supreme Court upheld
this standard. 462 U.S. 393, 397 (1983); see also NLRB v. Brooks Cameras, Inc., 691 F.2d
912, 915 (9th Cir. 1982) (applying Wright Line test); Borel Rest. Corp. v. NLRB, 676 F.2d
190, 192 (6th Cir. 1982) (same); Leona Green, Mixed Motives and After-Acquired Evidence:
Second Cousins Benefit from 20/20 Hindsight, 49 Ark. L. Rev. 211, 235-36 (1996)
(describing NLRB's reliance on Mt. Healthy for labor discrimination cases).
[FN89]. See Wallace v. Dunn Constr. Co., 968 F.2d 1174, 1179 (11th Cir. 1992) (arguing that
permitting after-acquired evidence to defeat recovery would be inconsistent with Mt.
Healthy), aff'd in part, rev'd in part, 62 F.3d 374 (11th Cir. 1995); James Newman, Note, Thou
Shalt Not Lie to Your Employer: Employment Discrimination and the Affirmative Defense of
After Acquired Evidence, 30 Gonz. L. Rev. 365, 392-409 (1994-1995) (critiquing use of
after-acquired evidence).
[FN90]. See Summers v. State Farm Mut. Auto Ins. Co., 864 F.2d 700, 708 (10th Cir. 1988)
(The present case is akin to the hypothetical wherein a company doctor is fired because of his
age, race, religion, and sex and the company... thereafter discovers that the discharged em-
ployee was not a doctor.... [T]he masquerading doctor would be entitled to no relief....); see
also Milligan-Jensen v. Mich. Tech. Univ., 975 F.2d 302, 305 (6th Cir. 1992) (denying relief
to employee who failed to disclose felony conviction); Washington v. Lake County, 969 F.2d
250, 253-56 (7th Cir. 1992) (same). But see McKennon v. Nashville Banner Publ'g Co., 513
U.S. 352 (1995) (overruling Summers, Milligan-Jensen, and Washington).
[FN91]. See Paglio v. Chagrin Valley Hunt Club Corp., 966 F.2d 1453, 1992 WL 144674 (6th
Cir. June 25, 1992) (unpublished table decision) (denying relief to employee who embezzled
company funds). But see McKennon, 513 U.S. 352 (overruling Paglio).
[FN92]. See McKennon v. Nashville Banner Publ'g. Co., 9 F.3d 539, 541-43 (6th Cir. 1993)
(denying relief to employee who copied confidential files), rev'd, 513 U.S. 352; Powers v.
Chi. Transit Auth., 890 F.2d 1355, 1360 (7th Cir. 1989) (denying relief to attorney who viol-
ated ethical rules). But see McKennon, 513 U.S. 352 (overruling Powers).
[FN93]. Washington, 969 F.2d at 253 (quoting Smith v. General Scanning, Inc., 876 F.2d
1315, 1319 n.2 (7th Cir. 1989)).
[FN94]. 513 U.S. at 362-63.
[FN95]. Id. The Court also held that a court could deviate from this remedy based on equitable
considerations. Id.
[FN96]. While it is true that McKennon came before the Court on the express assumption
that an unlawful motive was the sole basis for the firing, id. at 359, it is not entirely clear that
the Court should have tossed Mt. Healthy aside. Under Mt. Healthy, the employer should be
required to prove that they would have terminated the employee for a lawful reason if, hypo-
thetically, they had known of the employee's misconduct at the time. The employee did not
dispute this point in McKennon, but employees have raised the issue in other cases. See, e.g.,
O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761-63 (9th Cir. 1996) (arguing
that employer would not have terminated employee even if it had known of misconduct).
[FN97]. See supra Part I.B.2.
[FN98]. As a general rule, police officers are neither required nor expected to make arrests
whenever they have probable cause to do so. See, e.g., Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001) (stating that where probable cause exists, an officer is accordingly au-
thorized (not required, but authorized) to make a custodial arrest without balancing costs and
benefits or determining whether or not... arrest was in some sense necessary); Barbara K.
Finesmith, Police Response to Battered Women: A Critique and Proposals for Reform, 14
Seton Hall L. Rev. 74, 75 (1983) (noting that many jurisdictions encourage nonarrest or medi-
ation in cases of domestic violence).
[FN99]. Watson, supra note 21, at 123.
[FN100]. See infra Part II.C.
[FN101]. 547 U.S. 250, 256-57 (2006).
[FN102]. See Wood v. Kesler, 323 F.3d 872, 883 (11th Cir. 2003) (ruling that probable cause
defeats retaliatory prosecution claim); Keenan v. Tejeda, 290 F.3d 252, 260 (5th Cir. 2002)
(same); Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992) (same).
[FN103]. See Moore v. Hartman, 388 F.3d 871, 878 (D.C. Cir. 2004) (permitting retaliatory
prosecution claim without regard to probable cause), rev'd 547 U.S. 250; Poole v. County of
Otero, 271 F.3d 955, 961 (10th Cir. 2001) (same); Haynesworth v. Miller, 820 F.2d 1245,
1257 (D.C. Cir. 1987) (same). But see Hartman, 547 U.S. 250 (2006) (overruling Poole and
Haynesworth).
[FN104]. 547 U.S. at 265-66.
[FN105]. Brief for Respondent at 3, Hartman, 547 U.S. 250 (No. 04-1495).
[FN106]. Id. at 3-4. The use of single-line scanners, which can only sort mail when the sender
uses a nine digit zip code, was found to be very inefficient. See S.J. Diamond, Boondoggle of
Nine-Digit Zip Won't Go Away, L.A. Times, June 10, 1988, at D1.
[FN107]. Hartman, 547 U.S. at 250. The Postal Service also alleged that the plaintiff may
have played an improper role in the selection of the Postmaster General.
[FN108]. Id. at 253-54.
[FN109]. Id. at 254 (quoting United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596
(D.D.C. 1989)).
[FN110]. Id. at 262; see also Imbler v. Pachman, 424 U.S. 409, 431 (1976) (holding prosec-
utor immune for role in presenting and prosecuting case). A prosecutor may be held liable for
actions taken in an administrative or investigative role. See, e.g., Burns v. Reed, 500 U.S. 478,
493 (1991) (declining to extend immunity to prosecutor who advised police in investigation of
criminal case). In Hartman, the plaintiff initially attempted to pursue a claim against the pro-
secutor in his investigative capacity. 1 Joint Appendix at 45, Hartman, 547 U.S. 250 (No.
04-1495). Despite evidence that the prosecutor had pursued the investigation because he
wanted to attract the attention of a law firm looking for a tough trial attorney, the plaintiff did
not pursue this claim on appeal. Hartman, 547 U.S. at 262 n.8, 264. For a critique of prosec-
utorial immunity, see generally Douglas J. McNamara, Buckley, Imbler, and Stare Decisis:
The Present Predicament of Prosecutorial Immunity and an End to Its Absolutist Means, 59
Alb. L. Rev. 1135 (1996).
[FN111]. Hartman, 547 U.S. at 254.
[FN112]. Id. at 255.
[FN113]. The decision was 5-2. Justice Ginsburg filed a dissenting opinion, which Justice
Breyer joined. See id. at 266-67 (Ginsburg, J., dissenting). Chief Justice Roberts and Justice
Alito did not participate in the decision. Id. at 251 (majority opinion).
[FN114]. Id. at 258.
[FN115]. The Court acknowledged that probable cause does not guarantee that inducement
[by the retaliatory official] was not the but-for fact in a prosecutor's decision. Id. at 265.
[FN116]. A recent decision in the Eighth Circuit, Kilpatrick v. King, suggests that Hartman
requires the plaintiff to show that the retaliatory motive was a but-for cause of the harm.
499 F.3d 759, 767 (8th Cir. 2007). While the Supreme Court did hold that causation is under-
stood to be but-for causation, it nowhere stated that the burden is on the plaintiff to establish
but-for causation as part of the prima facie case, and it strongly suggested that the burden is
instead on the defendant to demonstrate that the animus was not a but-for cause. Hartman, 547
U.S. at 260.
[FN117]. Hartman, 547 U.S. at 259.
[FN118]. Id.
[FN119]. See supra note 110.
[FN120]. Hartman, 547 U.S. at 261-62.
[FN121]. Id. at 261.
[FN122]. Id.
[FN123]. Id. at 265.
[FN124]. Id. at 264. In dissent, Justice Ginsburg argued that the rarity of alternative evidence
did not warrant structuring a cause of action, that precludes relief when such evidence
does arise. Id. at 267 (Ginsburg, J., dissenting) (citation omitted).
[FN125]. Id. at 264 n.10 (majority opinion).
[FN126]. Id. at 263.
[FN128]. See supra Part I.B.
[FN129]. Hartman, 547 U.S. at 265-66. On remand from Hartman, the district court granted
the government's motion to dismiss the claim on the grounds that Moore's indictment conclus-
ively established probable cause--ending a controversy that began twenty-five years earlier.
See Moore v. Hartman, 569 F. Supp. 2d 133, 141 (D.D.C. 2008) (dismissing plaintiff's claim).
[FN130]. Compare Carepartners, LLC v. Lashway, 545 F.3d 867, 877 n.7 (9th Cir. 2008)
(Hartman does not apply to this case because the Court made a clear distinction between re-
taliatory-prosecution actions to which the additional pleading and proof requirements apply,
and ordinary retaliation actions to which the requirements do not apply (i.e., where there is
no independent prosecutorial action).), with Barnes v. Wright, 449 F.3d 709, 720 (6th Cir.
2006) (However, in its analysis, Hartman appears to acknowledge that its rule sweeps
broadly....).
[FN131]. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 397 (1926) (stating that for
constitutional issues, the Supreme Court has preferred to follow the method of a gradual ap-
proach to the general by a systematically guarded application and extension of constitutional
principles to particular cases as they arise, rather than by out of hand attempts to establish
general rules to which future cases must be fitted). This is not to say that the Court strictly
follows this rule, or that it does not announce broad rules while nominally deciding the issue
narrowly. As Professor Sunstein notes, the official story of Anglo-American adjudication is
a minimalist one, though the courts' actual practice is more complex, embodying, roughly
speaking, a rebuttable presumption in favor of minimalism. Cass R. Sunstein, The Supreme
Court, 1995 Term---Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 33 (1996).
[FN132]. See Hartman, 547 U.S. at 259-65 (discussing presumption of prosecutorial regularity
and complex causation as two ways in which retaliatory prosecution differs from ordinary re-
taliation claim).
[FN133]. See Skoog v. County of Clackamas, 469 F.3d 1221, 1233-35 (9th Cir. 2006)
(reading Hartman to mean that differences between retaliatory prosecution claims and other
retaliation claims justified and necessitated the additional requirement in retaliatory prosecu-
tion claims); Gullick v. Ott, 517 F. Supp. 2d 1063, 1071-72 (W.D. Wis. 2007) (declining to
extend Hartman to retaliatory arrest claim).
[FN134]. See Crawford-El v. Britton, 523 U.S. 574, 584-85 (1998) (stating that official's
state of mind is easy to allege and hard to disprove in context of retaliation claim against
prison official (internal quotation marks omitted)); North Carolina v. Pearce, 395 U.S. 711,
725 n.20 (1969) (stating that in claim for retaliation in criminal sentencing, existence of a re-
taliatory motivation would... be extremely difficult to prove).
[FN135]. The Court certainly knows how to use limiting language when it intends to do so.
See, e.g., Ashcroft v. ACLU, 535 U.S. 564, 585 (2002) (stating that scope of our decision
today is quite limited); Bush v. Gore, 531 U.S. 98, 109 (2000) (per curiam) (stating that
Court's consideration is limited to the present circumstances).
[FN136]. See Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007) (reading Hartman to
require specifically tailored pleading standards); Barnes v. Wright, 449 F.3d 709, 720 (6th
Cir. 2006) ([I]n its analysis, Hartman appears to acknowledge that its rule sweeps broadly;
the Court noted that causation in retaliatory-prosecution cases is usually more complex than
it is in other retaliation cases. (quoting Hartman, 547 U.S. at 261)).
[FN137]. See infra Part III.
[FN138]. See Benigni v. Smith, 121 F. App'x 164, 165-66 (8th Cir. 2005) (dismissing retali-
ation claim where officer had arguable probable cause for arrest); Keenan v. Tejeda, 290
F.3d 252, 261-62 (5th Cir. 2002) (suggesting that officers would be exonerated from retali-
ation claim if probable cause existed for arrest); Redd v. City of Enterprise, 140 F.3d 1378,
1383 (11th Cir. 1998) (dismissing retaliation claim where officer had arguable probable
cause for arrest); Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995)
(dismissing suit if the officer either had probable cause or... [had] an objectively reasonable
belief that he had probable cause).
[FN139]. See Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (holding that existence of
probable cause was not determinative of First Amendment claim); DeLoach v. Bevers, 922
F.2d 618, 620 (10th Cir. 1990) (allowing retaliation claim to proceed despite presence of
probable cause).
[FN140]. See Benigni, 121 F. App'x at 165 (citing Foster v. Metro. Airports Comm'n, 914
F.2d 1076, 1081-82 (8th Cir. 1990) (excessive force)); Redd, 140 F.3d at 1383 (citing United
States v. Rubio, 727 F.2d 786, 791 (9th Cir. 1984) (unlawful search)); Singer, 63 F.3d 110 at
120 (citing Magnotti v. Kuntz, 918 F.2d 364 (2d Cir. 1990) (false arrest)). Keenan is an ex-
ception, relying instead on Fifth Circuit precedent on malicious prosecution. See Keenan, 290
F.3d at 260 (citing Johnson v. La. Dep't of Agric., 18 F.3d 318 (5th Cir. 1994)).
[FN141]. See, e.g., Foster, 914 F.2d at 1079 (noting that unlawful arrest claim turns on prob-
able cause).
[FN142]. Redd, 140 F.3d at 1383.
[FN143]. To illustrate the brevity of this analysis, Benigni's complete discussion of First
Amendment retaliation is as follows: Our holding that Smith has qualified immunity for the
alleged unlawful arrest disposes of Begnini's [sic] argument that Smith arrested him in retali-
ation for the exercise of his First Amendment rights. 121 F. App'x at 166 (citing Foster, 914
F.2d at 1080).
[FN144]. See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (stating that plaintiffs
may challenge otherwise lawful search or seizure through Fourteenth Amendment Equal Pro-
tection Clause).
[FN145]. See also Watson, supra note 21, at 126-28 (critiquing pre-Hartman rationale for no-
probable-cause rule).
[FN146]. Phillips v. Irvin, 222 F. App'x 928, 929 (11th Cir. 2007) (applying no-prob-
able-cause rule without reference to Hartman); Williams v. City of Carl Junction, 480 F.3d
871, 876 (8th Cir. 2007) (holding that Hartman is broad enough to apply to retaliatory arrest
cases).
[FN147]. District courts in the Second Circuit continue to apply the no-probable-cause rule.
See, e.g., Genia v. N.Y. State Troopers, No. 03-CV-0870, 2007 WL 869594, at *24 (E.D.N.Y.
Mar. 20, 2007) (stating that probable cause defeats retaliatory arrest claim).
[FN148]. See Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (declaring that existence of
probable cause is not determinative of First Amendment question).
[FN149]. See Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) (concluding that because
defendants had probable cause to seek an indictment and to arrest the plaintiff, retaliatory
arrest claim failed as a matter of law).
[FN150]. See Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (suggesting that Hart-
man might overturn Greene, but declining to reach issue because facts demonstrated absence
of probable cause). The majority in Leonard simply ignored the holding in Barnes, though a
dissenting judge argued that the claim was foreclosed by that holding. See id. at 367 (Sutton,
J., dissenting in part).
[FN151]. See Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) (finding
Hartman to be distinguishable from retaliatory arrest claim).
[FN152]. A district court opinion in the Tenth Circuit did not require a showing of no prob-
able cause, though curiously it did so without citing either Hartman or Tenth Circuit preced-
ent. See Garcia v. Jaramillo, No. CIV-05-1212, 2006 WL 4079681, at *11 (D.N.M. Nov. 27,
2006) (applying rule on basis of Sixth Circuit precedent).
[FN153]. District courts in the Seventh Circuit have split on the issue. Compare Gullick v.
Ott, 517 F. Supp. 2d 1063, 1071-72 (W.D. Wis. 2007) (discussing Hartman and choosing not
to require showing of no probable cause), with Baldauf v. Davidson, No. 1:04-cv-1571, 2007
WL 2156065, at *2-*6 (S.D. Ind. Jul. 24, 2007) (discussing same, but reaching opposite con-
clusion), and Webb v. City of Joliet, No. 03 C 4436, 2006 WL 3692405, at *3-*4 (N.D. Ill.
Dec. 11, 2006) (same). The First Circuit has declined to require a showing of probable cause,
at least in certain circumstances. See Hrichak v. Kennebec County Sheriff, No. 06-59-B-W,
2007 WL 1229404, at *5-*7 (D. Me. Apr. 24, 2007) (holding that ruling applies to arresting
officers involved in a spur-of-the-moment, warrant-less arrest). The Third Circuit follows the
no-probable-cause rule. See Morales v. Taveras, No. 05-4032, 2007 WL 172392, at *7-*11
(E.D. Pa. Jan. 18, 2007) (concluding that plaintiff's rights were not violated because officer
had probable cause); Gallis v. Borough of Dickson City, No. 3:05 CV 551, 2006 WL
2850633, at *4-*5 (M.D. Pa. Oct. 3, 2006) (denying summary judgment pending determina-
tion of whether officers had probable cause); Pomykacz v. Borough of W. Wildwood, 438 F.
Supp. 2d 504, 513 (D.N.J. 2006) (denying motion for summary judgment where reasonable
factfinder could find officer was without probable cause).
[FN154]. See supra Part II.B.
[FN155]. The majority of circuits consistently require a plaintiff to plead and prove the ab-
sence of probable cause. See supra notes 146-147 and accompanying text. The Ninth Circuit
never requires a plaintiff to plead and prove the absence of probable cause. See supra note 151
and accompanying text.
[FN156]. See supra notes 117-128 and accompanying text.
[FN158]. See, e.g., Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (The law is well es-
tablished that [a]n act taken in retaliation for the exercise of a constitutionally protected right
is actionable under 1983 even if the act, when taken for a different reason, would have been
proper. (alteration in original) (internal quotation marks omitted)); Gullick, 517 F. Supp. 2d
at 1069 (explaining that no-probable-cause requirement is troubling because it would permit
unethical officers to target their enemies or critics with a litany of citations for petty violations
that would be ignored if committed by anyone else).
[FN159]. See, e.g., Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002) (arguing that First
Amendment rights should yield to needs of law enforcement); Morales v. Taveras, No.
05-4032, 2007 WL 172392, at *15 (E.D. Pa. Jan. 18, 2007) (arguing that probable-cause
pleading requirement is justified because of the ease of stating a retaliation claim and high
price [society may pay] if officers do not take action when they should do so (internal quota-
tion marks omitted)).
[FN162]. 449 F.3d 709, 712 (6th Cir. 2006).
[FN163]. See supra note 150 and accompanying text.
[FN164]. This Note identifies three current and two past circuit splits. See supra note 25.
[FN167]. Hartman v. Moore, 547 U.S. 250, 263 (2006).
[FN168]. See infra Part III.A.1.
[FN169]. See infra Part III.A.2.
[FN171]. Hartman, 547 U.S. at 259.
[FN172]. In Hartman, the defendants induced a prosecutor to bring charges against the
plaintiff. See supra Part II.A.1.
[FN173]. The plaintiff in Hartman faced the difficult burden of showing that the defendants,
acting out of retaliatory animus, had taken actions to influence the prosecutor, and that as a
result the prosecutor had filed charges he would not otherwise have filed. This evidentiary
hurdle played an important role in the Hartman decision. See supra notes 117-121 and accom-
panying text.
[FN174]. Hartman, 547 U.S. at 260.
[FN175]. For an example of the facts of a retaliatory arrest case, see supra notes 1-10 and ac-
companying text.
[FN176]. See, e.g., Williams v. City of Carl Junction, 480 F.3d 871, 876 (8th Cir. 2006)
(alleging that officers issued citations to plaintiff, at prompting of city officials, in retaliation
for criticism of city government); Curley v. Vill. of Suffern, 268 F.3d 65, 72-73 (2d Cir. 2001)
(alleging that officers arrested plaintiff in retaliation for statements criticizing mayor during
election campaign); Hansen v. Williamson, 440 F. Supp. 2d 663, 677-78 (E.D. Mich. 2006)
(alleging that arrest was made for publication of newspapers critical of mayor); Pomykacz v.
Borough of W. Wildwood, 438 F. Supp. 2d 504, 512-13 (D.N.J. 2006) (alleging that officers
arrested plaintiff for criticism of mayor and police).
[FN177]. See, e.g., Barnes v. Wright, 449 F.3d 709, 712 (6th Cir. 2006) (describing allegation
that officers tried to obtain warrant from county attorney). The presence of the grand jury in
Barnes might explain the Sixth Circuit's hesitation to apply the holding of that case to sub-
sequent retaliatory arrest cases. See supra notes 148-150 and accompanying text.
[FN178]. To paraphrase Hartman, this subcategory of cases does not involve retaliatory arrest,
but rather retaliatory inducement to arrest. Cf. Hartman, 547 U.S. at 262 (describing plaintiffs'
claim as one for retaliatory inducement to prosecute).
[FN180]. See, e.g., Hansen, 440 F. Supp. 2d at 666 (describing government official's threaten-
ing to arrest plaintiff, and stating, I'll show you how much authority I have, before calling
police).
[FN181]. Moore v. Hartman, 388 F.3d 871, 881, 884 (D.C. Cir. 2004). This evidence included
several Postal Service documents that listed the plaintiff's speech as a rationale for pressing
prosecution; letters sent directly from the Postal Service to the U.S. Attorney's Office pressur-
ing them to prosecute a case that senior prosecutors viewed as questionable, entirely cir-
cumstantial, complicated, and likely to consume significant resources; and an admission
from the prosecutor that he pursued the case not for its merits, but because he wanted to at-
tract the interest of a law firm looking for a tough trial attorney. Id. at 881-85; see also Hart-
man, 547 U.S. at 258-89 & n.6 (noting plaintiff's compelling evidence). Nor is Hartman
unique. Fewer than two dozen retaliatory prosecution claims have come before the courts of
appeals in the past twenty-five years, Hartman, 547 U.S. at 264 & n.10, but several of these
cases involved clear evidence of a causal link. See, e.g., Poole v. County of Otero, 271 F.3d
955, 958 (10th Cir. 2001) (presenting evidence that prosecutor withdrew careless driving
charge and charged plaintiff with reckless driving and resisting arrest shortly after plaintiff's
attorney contacted police about civil suit against them); Haynesworth v. Miller, 820 F.2d
1245, 1249-51 (D.C. Cir. 1987) (alleging that prosecutor expressly offered to drop disorderly
conduct charge in exchange for plaintiff not filing civil suit against police officers).
[FN182]. Hartman, 547 U.S. at 263 (discussing longstanding presumption of regularity ac-
corded to prosecutorial decisionmaking); United States v. Armstrong, 517 U.S. 456, 464
(1996); see also supra note 110 and accompanying text.
[FN183]. Heckler v. Chaney, 470 U.S. 821, 832, 838 (1985) (setting forth presumption that
agency enforcement actions are unreviewable by analogy to prosecutorial decisionmaking).
[FN184]. See Wayte v. United States, 470 U.S. 598, 607 (1985) (stating that prosecutorial de-
cisions, which involve [s]uch factors as the strength of the case, the prosecution's general de-
terrence value, the Government's enforcement priorities, and the case's relationship to the
Government's overall enforcement plan[,] are not readily susceptible to the kind of analysis
the courts are competent to undertake).
[FN185]. In selective prosecution claims, for example, the plaintiff must show clear evid-
ence to disprove the presumption that the prosecutor has acted lawfully. Armstrong, 517 U.S.
at 463-65. Together with the other hurdles that a plaintiff faces in this area, this heightened
standard of proof disables most selective prosecution claims from succeeding, which they al-
most never do. Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure,
135 U. Pa. L. Rev. 1365, 1373 (1987).
[FN186]. Hartman was a suit not against the prosecutor, but against Postal Service officials
who allegedly pressured the prosecutor to file suit. See supra notes 110-111 and accompany-
ing text.
[FN187]. See Banks v. Dretke, 540 U.S. 668, 696 (2004) (Ordinarily, we presume that pub-
lic officials have properly discharged their official duties. (quoting Bracy v. Gramley, 520
U.S. 889, 909 (1997))); U.S. v. Hellman, 556 F.2d 442, 446 n.1 (9th Cir. 1977) (Sneed, J.,
concurring) (Absent proof of a substantial departure from official procedures, a presumption
of regularity attaches to police action which allows the court to presume that the police in its
actions has discharged its official duty and complied with any relevant regulations and pro-
cedures.).
[FN188]. See Atwater v. City of Lago Vista, 532 U.S. 318, 345-54 (2001) (outlining problems
with judicial review of arrest decisions).
[FN189]. At least one court has found this argument to be convincing. See Saleh v. City of
New York, No. 06 Civ. 1007, 2007 WL 4437167, at *8 (S.D.N.Y. Dec. 17, 2007) (The reas-
on that the absence of probable cause is required for claims of retaliatory arrest and prosecu-
tion, but not for other retaliation claims, is that the presumption of prosecutorial regularity at-
taches to arrests and prosecutions, but not necessarily to other police conduct.).
[FN190]. See Hartman v. Moore, 547 U.S. 250, 263 (2006) (discussing need to bridge gap
between nonprosecuting agent's motive and prosecutor's action and to address presumption of
regularity).
[FN191]. A plaintiff could no longer sue public officials for retaliation in the exercise of their
official duties. This would leave only two avenues to state a retaliation claim. First, the
plaintiff could sue a private party for inducing a public official to take retaliatory action. See
Dennis v. Sparks, 449 U.S. 24, 27-29 (1980) (noting that private persons, if jointly engaged
with state officials in the challenged action, can be state actors for purposes of constitutional
or statutory claim). Second, the plaintiff could sue a public official for retaliation that oc-
curred outside the scope of their official duties. See Saleh, 2007 WL 4437167, at *8 (finding
that reporting plaintiff to immigration officials was outside scope of duty of police officers).
[FN192]. Delaware v. Prouse, 440 U.S. 648 (1979), is an illustrative example. In Prouse,
Justice Rehnquist wrote in dissent that [f]or constitutional purposes, the action of an indi-
vidual law enforcement officer is the action of the State itself,... and state acts are accompan-
ied by a presumption of validity until shown otherwise. Id. at 667 (Rehnquist, J., dissenting).
In theory, it should not have been necessary to indulge in this fiction of state action--the ac-
tions of an individual police officer already benefit from a presumption of validity. That
Justice Rehnquist found it necessary to do so, and that the majority opinion made no mention
of any presumption of validity, underscores the infrequency with which courts grant police of-
ficers a presumption of regularity.
[FN193]. See, e.g., Payton v. New York, 445 U.S. 573, 586-87 (1980) (holding searches and
seizures inside a home, without a warrant, are presumptively unreasonable, but seizure of
property in plain view is presumptively reasonable, assuming there is probable cause to be-
lieve property is connected to criminal activity).
[FN194]. See Walcyzk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007) (Ordinarily, an arrest or
search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because
such warrants may issue only upon a showing of probable cause.); United States v. Long-
mire, 761 F.2d 411, 417 (7th Cir. 1985) (noting that where police act pursuant to a warrant,
arrest is presumably legal).
[FN195]. See United States v. Watson, 423 U.S. 411, 423 (1976) (suggesting that warrantless
arrests may be less readily upheld than arrest supported by warrants). This principle is reflec-
ted in the general federal rule on burdens of proof: Where the police act pursuant to a warrant,
the defendant bears the burden of proving illegality, but where the police act without a war-
rant, the prosecution must show that the arrest was legal. See 5 Wayne R. LaFave, Search and
Seizure 11.2, at 41 (3d ed. 1996).
[FN196]. Cf. Johnson v. United States, 333 U.S. 10, 14 (1948) (stating that purpose of enfor-
cing warrant requirement is to ensure that judgments are made by a neutral and detached ma-
gistrate instead of being judged by the officer engaged in the often competitive enterprise of
ferreting out crime).
[FN197]. See Bordeaux v. Lynch, 958 F. Supp. 77, 83 (N.D.N.Y. 1997) (A grand jury's in-
dictment establishe[s], at the very least, a presumption of probable cause. (quoting Wood-
ard v. Hardenfelder, 845 F. Supp. 960, 967 (E.D.N.Y. 1994))); supra note 194.
[FN199]. See supra notes 182-185.
[FN200]. See, e.g., United States v. George, 883 F.2d 1407, 1411 (9th Cir. 1989) ([T]he po-
lice bear a heavy burden when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests. (quoting Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984)
)).
[FN201]. Excepting, of course, claims where some independent intervening actor has broken
the chain of causation. See supra Part III.A.1. The pleading standard developed in Hartman
was built on the notion that a special sort of allegation is needed both to bridge the gap
between the nonprosecuting government agent's motive and the prosecutor's action, and to ad-
dress the presumption of prosecutorial regularity. Hartman v. Moore, 547 U.S. 250, 263
(2006).
[FN203]. See supra Part II.A.2.
[FN204]. Hartman, 547 U.S. at 265.
[FN205]. If the police officer would not have made the arrest in the absence of plaintiff's pro-
tected speech, imposing liability on the officer places no burden on legitimate law enforce-
ment purposes. And if the officer would have made the arrest even absent the protected
speech, Mt. Healthy clearly holds that the plaintiff should not be made better off by the of-
ficer's illegitimate motive. See supra note 54 and accompanying text. The risk is that a court
might confuse the two scenarios, and either discourage police officers from arresting dis-
respectful suspects or leave arrestees in worse positions than they would have been in, absent
retaliatory motive.
[FN206]. Maryland v. Wilson, 519 U.S. 408, 422 (1997) (Stevens, J., dissenting); see also
United States v. Leon, 468 U.S. 897, 957-58 (1984) (Brennan, J., dissenting) (The clear in-
centive that operated in the past to establish probable cause... has now been so completely
vitiated that the police need only show that it was not entirely unreasonable under the cir-
cumstances of a particular case for them to believe that the warrant they were issued was val-
id. (citations omitted)); Thomas Y. Davies, Denying a Right by Disregarding Doctrine: How
Illinois v. Rodriguez Demeans Consent, Trivializes Fourth Amendment Reasonableness, and
Exaggerates the Excusability of Police Error, 59 Tenn. L. Rev. 1, 52-53, 57 (1991) (arguing
that reasonableness standard is an invitation to reviewing courts to treat a police intrusion as
reasonable if any explanation for the police conduct can be given). Given his skepticism
about probable cause, it is somewhat surprising that Justice Stevens sided with the majority in
Hartman. See supra note 113.
[FN207]. See Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74
Miss. L.J. 279, 307 (2004) (arguing that reasonableness standard reduces Fourth Amendment
protections to prohibition against irrational police actions).
[FN208]. Draper v. United States, 358 U.S. 307, 313 (1959) (quoting Carroll v. United States,
267 U.S. 132, 162 (1925)).
[FN209]. Texas v. Brown, 460 U.S. 730, 742 (1983); see also Brinegar v. United States, 338
U.S. 160, 175 (1949) (holding that probable cause means less than evidence which would
justify condemnation or conviction [but] more than bare suspicion (quoting Locke v. United
States, 11 U.S. (7 Cranch) 339, 348 (1813))). Professor Grano argues that this rule is justified
because if the police can narrow the list of suspects to a small group, we may reasonably ex-
pect--indeed, require--each suspect to sacrifice some liberty or privacy in order to unmask the
offender. Joseph D. Grano, Probable Cause and Common Sense: A Reply to the Critics of
Illinois v. Gates, 17 U. Mich. J.L. Reform 465, 496-97 (1984). For a critique of this argument,
see Bacigal, supra note 207, at 319-20 (arguing that harm to innocent suspects outweighs be-
nefit of catching the guilty).
[FN210]. Illinois v. Gates, 462 U.S. 213, 231 (1983) (describing probable cause as flexible
standard, built around factual and practical considerations of everyday life on which reason-
able and prudent men, not legal technicians, act (internal quotation marks omitted) (quoting
Brinegar, 338 U.S. at 175)).
[FN211]. See id. at 238 n.11 (stating that there are so many variables in the probable-cause
equation that one determination will seldom be a useful precedent for another); Wayne R.
LaFave, Case-by-Case Adjudication Versus Standardized Procedures: The Robinson Di-
lemma, 1974 Sup. Ct. Rev. 127, 141 (Fourth Amendment doctrine... is primarily intended to
regulate the police in their day-to-day activities and thus ought to be expressed in terms that
are readily applicable by the police in the context of the law enforcement activities in which
they are necessarily engaged. (footnotes omitted)).
[FN212]. See Brinegar, 338 U.S. at 176 (stating that probable cause strikes balance between
permitting effective law enforcement and protecting citizens from officers' whim or
caprice); John W. Hall, 1 Search and Seizure 100 (3d ed. 2000) (arguing that historical pur-
pose of Fourth Amendment was to guarantee that police intrusions were justified and not
based on mere suspicion or whim).
[FN213]. Probable cause is based on objective facts, not on an officer's good faith. See United
States v. Ross, 456 U.S. 798, 808 (1982).
[FN214]. Brinegar, 338 U.S. at 175.
[FN215]. Maryland v. Wilson, 519 U.S. 408, 422 (1997) (Stevens, J., dissenting).
[FN216]. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
[FN217]. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
[FN218]. Crawford-El v. Britton, 523 U.S. 574, 592 (1998) (naming right to be free of retali-
ation for protected speech as right that is clearly established).
[FN219]. Malley v. Briggs, 475 U.S. 335, 341 (1986).
[FN221]. For judicial opinions recognizing this discretion, see, e.g., Atwater v. City of Lago
Vista, 532 U.S. 318, 350 (2001) (holding police may exercise judgment in choosing between
the discretionary leniency of a summons in place of a clearly lawful arrest, and there is no
legal basis to challenge this decision); John v. City of El Monte, 515 F.3d 936, 940 (9th Cir.
2007) ([An] officer's subjective intention in exercising his discretion to arrest is immaterial
in judging whether his actions were reasonable for Fourth Amendment purposes.).
[FN222]. See Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-
Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543, 560-62 (1960) (noting
that resource constraints force police to establish priorities of enforcement).
[FN223]. Allowing a victim to play a role in deciding whether or not the offender will be ar-
rested can empower the victim and may reduce the incidence of future crime. See Linda G.
Mills, Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 Harv. L.
Rev. 550, 565-70 (1999) (arguing that mandatory arrest statutes disempower victims of do-
mestic violence and lead to increased abuse).
[FN224]. The criminal justice system relies heavily on criminal informants. See Ian Wein-
stein, Regulating the Market for Snitches, 47 Buff. L. Rev. 563, 564 (1999) (arguing that cur-
rent use of informant information is excessive).
[FN225]. See Wayne R. LaFave, Am. Bar Found., Arrest: The Decision to Take a Suspect into
Custody passim (1965) (discussing various factors that bear on decision to make arrest).
[FN226]. 1 ABA Standards for Criminal Justice 1-4.5, cmt. at 1-124 (2d ed. 1980).
[FN227]. See, e.g., Cal. Gov't Code 26601 (West 2007) ([S]heriff shall arrest and take be-
fore the nearest magistrate for examination all persons who attempt to commit or who have
committed a public offense.); Me. Rev. Stat. Ann. tit. 15, 704 (2007) (Every sheriff,
deputy sheriff, constable, city or deputy marshal, or police officer shall arrest and detain per-
sons found violating any law of the State or any legal ordinance or bylaw of a town....). For a
historical discussion of full-enforcement statutes, see Gregory Howard Williams, Police Rule-
making Revisited: Some New Thoughts on an Old Problem, Law & Contemp. Probs., Autumn
1984, at 123, 133-44.
[FN228]. See, e.g., Fla. Stat. 947.22(3) (2007) (If a law enforcement officer has probable
cause to believe that a parolee has violated the terms and conditions of his or her parole, the
officer shall arrest and take into custody the parolee....).
[FN229]. See, e.g., Ariz. Rev. Stat. 13-3601(B) (LexisNexis 2007) (stating that in cases of
domestic violence involving physical injury, [a] peace officer shall arrest a person, with or
without a warrant, if the officer has probable cause to believe that the offense has been com-
mitted); Minn. Stat. 518B.01, subdiv. 14(e) (Supp. 2008) (A peace officer shall arrest
without a warrant and take into custody a person whom the peace officer has probable cause
to believe has violated [a domestic protection order].). For a discussion of mandatory arrest
policies for domestic violence offenses, see Barbara Fedders, Note, Lobbying for Mandatory-Ar-
rest Policies: Race, Class, and the Politics of the Battered Women's Movement, 23 N.Y.U.
Rev. L. & Soc. Change 281, 287-96 (1997).
[FN230]. 545 U.S. 748, 759-61 (2005). The statute provided that a peace officer shall arrest,
or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of
a person suspected of violating a restraining order. Colo. Rev. Stat. 18-6-803.5(3) (1999)
(emphasis added). One lawmaker described the effect of the bill as follows: [T]he entire
criminal justice system must act in a consistent manner .... [P]olice must make probable cause
arrests. Gonzales v. City of Castle Rock, 366 F.3d 1093, 1107-08 (10th Cir. 2004) (quoting
Hearing on H.B. 125 Before the Colo. H. Judiciary Comm., Feb. 15, 1994), rev'd on other
grounds, Castle Rock, 545 U.S. 748.
[FN231]. Castle Rock, 545 U.S. at 760. This is in accord with the traditional approach to man-
datory arrest statutes. The American Bar Association states that for a number of reasons, in-
cluding their legislative history, insufficient resources, and sheer physical impossibility, it has
been recognized that such statutes cannot be interpreted literally. See 1 ABA Standards for
Criminal Justice, supra note 226, at 1-4.5, cmt. at 1-125. Most cases are in accord with this
principle. See, e.g., Florence v. Town of Plainfield, 909 A.2d 587, 591 (Conn. Super. Ct.
2006) (listing discretionary judgments that police may make despite mandatory arrest statute);
Cockerham-Ellerbee v. Town of Jonesville, 626 S.E.2d 685, 688 (N.C. Ct. App. 2006) (stating
literal reading of mandatory arrest statute would be unreasonable). Some courts, however,
break from this trend and hold that mandatory arrest statutes give rise to a duty to arrest. See,
e.g., Matthews v. Pickett County, 996 S.W.2d 162, 164 (Tenn. 1999) (stating police officers
had duty to arrest if there was reasonable cause to believe suspect had violated protective or-
der).
[FN232]. James Q. Wilson, Varieties of Police Behavior 31 (1968); see also Martin v. Mal-
hoyt, 830 F.2d 237, 268 (D.C. Cir. 1987) ([E]veryday experience suggests that officers do
(and should) limit themselves to a warning in many instances of relatively technical viola-
tions.); Nicole Stelle Garnett, Ordering (and Order in) the City, 57 Stan. L. Rev. 1, 7 (2004)
(noting that in disorderly conduct situations, arrests were not the primary means used by po-
lice officers to keep the peace).
[FN233]. Egon Bittner, The Police on Skid-Row: A Study of Peace Keeping, 32 Am. Soc.
Rev. 699, 710 (1967); see also Brandt J. Goldstein, Panhandlers at Yale: A Case Study in the
Limits of Law, 27 Ind. L. Rev. 295, 337, 337-41, 350 (1993) (finding police generally refrain
from using arrests when other means for controlling panhandler activity are available); Debra
Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities,
and the New Policing, 97 Colum. L. Rev. 551, 589 (1997) (noting arrest can actually interfere
with officer's primary goal of maintaining order because it takes officer off beat for a time).
The American Bar Association endorses this approach, stating that a law enforcement officer
having grounds for making an arrest should take the accused into custody or, already having
done so, detain him further only when such action is required by the need to carry out legitim-
ate functions. Am. Bar Ass'n, Project on Standards of Criminal Justice: Standards Relating to
Pretrial Release 2.1, at 31 (1980).
[FN234]. See Bittner, supra note 233, at 710 ([C]ompliance with the law is merely the out-
ward appearance of an intervention that is actually based on altogether different considera-
tions.). Indeed, for better or for worse, one of the functions of ordinances prohibiting of-
fenses such as loitering or vagrancy is to allow police officers to detain and investigate indi-
viduals whom they might not otherwise be able to detain. See Sanford H. Kadish, The Crisis
of Overcriminalization, in Blame and Punishment: Essays in the Criminal Law 21, 30-31
(1987) (arguing that public order offenses function as delegations of discretion to the police
to act in ways which formally we decline to extend to them because it would be inconsistent
with certain fundamental principles with respect to the administration of criminal justice).
[FN235]. See, e.g., Greene v. Barber, 310 F.3d 889, 893 (6th Cir. 2002) (explaining that
plaintiff was acquitted after jury trial); Ellis v. City of New York, 243 F.R.D. 109, 110
(S.D.N.Y. 2007) (noting that criminal charges against plaintiff had been dismissed).
[FN236]. Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007), provides an excellent example.
In Leonard, the plaintiff stood up at a town meeting, made a brief speech that included the
words God damn, and calmly sat back down, only to be arrested for disorderly conduct and
obscene language. Id. at 352. The plaintiff's wife had recently sued the township chief of po-
lice. Id. at 351. For other examples of arrests for minor infractions, see Bennett v. Hendrix,
423 F.3d 1247, 1249 (11th Cir. 2005) (alleging that officer attempted to arrest plaintiff on
trumped-up environmental charges); McCormick v. City of Lawrence, 325 F. Supp. 2d
1191, 1198 (D. Kan. 2004) (plaintiff arrested for obstruction of legal duty and interfering with
duties of police officer after shouting at officer while officer was checking another individu-
al's driver's license).
[FN237]. Of course, evidence of the absence of probable cause is a different matter entirely,
and there is no inconsistency in arguing that the absence of probable cause is a powerful form
of evidence that should be required to overcome the evidentiary hurdle of complex causation.
[FN238]. As discussed above, police officers routinely observe misdemeanor offenses. See
supra notes 232-234 and accompanying text. Felony offenses are rarer, and thus police of-
ficers must identify some unusual conduct that gave rise to their suspicion of a felony offense.
Moreover, an arrest for a felony will generally involve pretrial detention and the threat of
lengthy imprisonment, and may require a greater showing of probable cause than would a cita-
tion or brief arrest for a misdemeanor. See Berger v. New York, 388 U.S. 41, 69 (1967)
(Stewart, J., concurring) (Only the most precise and rigorous standard of probable cause
should justify an intrusion of this sort.). On the other hand, courts may also be inclined to
grant police officers greater leeway in arresting suspects for serious crimes, due to concerns
about safety. See Llanguno v. Mingey, 763 F.2d 1560, 1564-66 (7th Cir. 1985) (holding po-
lice were allowed to seize plaintiffs and search house due to emergency situation). But see
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (overruling Llanguno on other
grounds). But on the whole, it is easier to suspect a bystander of loitering than of murder.
[FN239]. See supra notes 232-234 and accompanying text. As evidence of this proposition,
consider that when New York City implemented a mandatory arrest policy for domestic viol-
ence incidents, misdemeanor domestic violence arrests rose by 114%, but felony domestic vi-
olence arrests rose by only 33%. Emily J. Sack, Battered Women and the State: The Struggle
for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1672.
[FN240]. See Curley v. Vill. of Suffern, 268 F.3d 65, 69 (2d Cir. 2001) (plaintiff arrested for
assault); Baldauf v. Davidson, No. 1:04-CV-1571-JDT-TAB, 2006 WL 3743819, at *8 (S.D.
Ind. Dec. 18, 2006) (plaintiff arrested for battering police officer), vacated in part, 2007 WL
1202911 (S.D. Ind. Apr. 23, 2007). Lest one think that such serious offenses can never in-
volve but-for retaliatory causation, the battery in Baldauf occurred when the plaintiff pushed
the officer's finger out of her face during a verbal confrontation. The plaintiff had previously
filed a complaint against the officer, and she repeatedly tried to end the argument peacefully.
Ironically, she was arrested at the police station after she showed up to file a complaint
against the officer, who did not initially choose to make the arrest. 2006 WL 3743819, at *7.
[FN241]. See supra notes 238-240.
[FN242]. The Supreme Court has indicated that courts should generally rely on tools such as
summary judgment, rather than heightened pleading standards, to screen out meritless cases
against public officials. See infra notes 289-291 and accompanying text.
[FN244]. See Alexis v. McDonald's Rests. of Mass., Inc., 67 F.3d 341, 346 (1st Cir. 1995)
(describing officer's threat that [y]ou better shut up your... mouth before I arrest you too);
Baldauf, 2006 WL 3743819, at *6 (describing officer stating do you know I can arrest you
for assault and then stating that if plaintiff left the scene, no arrest would be made); King v.
Ambs, No. 04-74867, 2006 WL 800751, at *2 (E.D. Mich. Mar. 28, 2006) (quoting officer as
stating [o]ne more word and I will arrest you); cf. Torries v. Hebert, 111 F. Supp. 2d 806,
812 (W.D. La. 2000) (discussing allegation that officer, after arresting plaintiffs for contribut-
ing to delinquency of minor for playing rap music, threatened to arrest them again if they
played music in the future).
[FN245]. See Holland v. City of Portland, 102 F.3d 6, 10 (1st Cir. 1996) (considering
plaintiff's allegation that after plaintiff refused to answer questions about robbery, officer
stated well, then we can get him for not having a license or something or other); Complaint
at 7-8, Bridge v. City of New York, No. 07 CV 2102, 2007 WL 1368487 (S.D.N.Y. Mar. 12,
2007) (alleging that officer stated [t]hat's it. [Your son]'s under arrest, and arrested plaintiff
and her son after plaintiff refused to stop speaking to person on telephone). This sort of evid-
ence is often found in cases where a state or local government official induces the police to
make a retaliatory arrest. See Hansen v. Williamson, 440 F. Supp. 2d 663, 666 (E.D. Mich.
2006) (describing situation where plaintiff refused to stop delivering papers to city hall and
mayor stated I'll show you how much authority I have and called police).
[FN246]. 111 F. Supp. 2d 806.
[FN247]. Id. at 810-12.
[FN248]. Id. at 811-12.
[FN249]. Id. at 812.
[FN250]. Id. The letter stated, in part, that the music that is being played in this establish-
ment is not what we in ... this community want our minor children to be hearing. Id.
[FN251]. Id.
[FN252]. Of course, it is entirely proper to arrest a plaintiff if the speech in question is unpro-
tected and constitutes a criminal offense. The plaintiff must first show that the speech in ques-
tion was protected. See supra notes 37-42 and accompanying text. The defendant's conduct in
Torries was objectionable because the gangster rap was protected speech. See 111 F. Supp.
2d at 817-22.
[FN253]. 423 F.3d 1247, 1248-49 (11th Cir. 2005).
[FN254]. One plaintiff was allegedly told that he would end up going to jail unless he op-
posed the referendum. Brief of Appellees Danny M. Bennett and Danny L. Reid at 8, Bennett,
423 F.3d 1247 (No. 02-11031-GG). One police officer was told that his job would be to head
up a Strike Force that was going to investigate 50-75 residents of Forsyth County who
might be opposed to Sheriff Hendrix's reelection. Id. at 11.
[FN255]. Id. at 13.
[FN256]. Button v. Harden, 814 F.2d 382, 383 (7th Cir. 1987).
[FN257]. See, e.g., Hinnenkamp v. City of St. Cloud, 178 F. App'x 620, 620 (8th Cir. 2006)
(per curiam) (noting plaintiff's allegation that officers arrested her in retaliation for filing civil
rights suit); Franklin v. City of Chi. Police Dep't, 175 F. App'x 740, 741 (7th Cir. 2005)
(discussing plaintiff's allegation that officers arrested her in retaliation for filing false arrest
claim).
[FN259]. Direct evidence is a statement or threat revealing that the arrest was motivated by
the plaintiff's speech. See supra notes 244-252 and accompanying text.
[FN260]. Some cases suggest that retaliatory arrest actions will allow clever plaintiffs to es-
cape liability by deliberately engaging in provocative speech immediately before the arrest.
See, e.g., Rollerson v. Gonzalez, No. G-06-CV-246, 2007 WL 1729643, at *8 (S.D. Tex. June
13, 2007) (stating that plaintiff cannot escape arrest or confrontation simply by engaging in
protected speech once officers arrive on the scene). Since a police officer can escape liability
by showing that an arrest would have occurred in the absence of the protected speech, this
should not be a problem. See supra Part I.B.2. In any case, it is unlikely that even the most
creative suspects would think to use an obscure cause of action such as retaliatory arrest in
such a manner, particularly since doing so would risk antagonizing an officer who might oth-
erwise be inclined to let the plaintiff go free.
[FN261]. No. 3:06cv70/RV/EMT, 2006 WL 3780716 (N.D. Fla. Dec. 20, 2006).
[FN262]. Id. at *1. The plaintiffs ultimately lost their case for failure to show that they were
prohibited from preaching because (rather ironically) they made a sworn statement in anoth-
er case stating that they continued to preach in Escambia. Id. at *3-*4.
[FN263]. Amended Complaint and Prayer for Permanent Injunctive Relief Declaratory Judg-
ment and Damages at 21, Bethel, No. 3:06CV70/RV/EMT, 2006 WL 3780716 (stating that of-
ficers have not harassed others in Escambia County who engage in similarly situated First
Amendment protected activities on the public right-of-ways, including furniture stores, car
washes, and government fundraising organizations).
[FN264]. See Washington v. Davis, 426 U.S. 229, 242 (1976) ( Disproportionate impact
...[s]tanding alone... does not trigger the rule that racial classifications are to be subjected to
the strictest scrutiny and are justifiable only by the weightiest of considerations. (citation
omitted)). For a discussion of the relationship between the Mt. Healthy framework and racial
discrimination cases, see supra note 52.
[FN265]. While it is not sufficient to prove discriminatory intent, evidence of discriminatory
impact is very important to such claims--indeed, it is often required to state a claim. See
United States v. Armstrong, 517 U.S. 456, 465 (1996) (holding that in selective prosecution
claim, plaintiff must prove that prosecutorial policy had a discriminatory effect and that it
was motivated by a discriminatory purpose. (quoting Wayte v. United States, 470 U.S. 598,
608 (1985))); Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167-71 (10th Cir. 2003)
(holding that plaintiff challenging racially discriminatory arrest must show discriminatory
purpose and effect); Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th Cir. 2001) (holding
that in challenging racially discriminatory traffic stops, plaintiff must prove discriminatory ef-
fect and purpose (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-66
(1977))).
[FN266]. See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (holding
that [c]lose timing between an employee's protected activity and an adverse action against
him may provide evidence for prima facie case).
[FN267]. See Morales v. Taveras, No. 05-4032, 2007 WL 172392, at *13-*15 (E.D. Pa. Jan.
18, 2007) (stating that probable cause is needed to prevent easy resort to retaliation claims
based on temporal proximity).
[FN268]. See Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *8 (M.D. Pa. Oct.
26, 2007) (ruling that timing was suggestive of retaliatory motive where officer stated that
was enough and arrested plaintiff immediately after she argued about trespass charges); cf.
Leonard v. Robinson, No. 03-72199, 2005 WL 5352521, at *11 (E.D. Mich. May 4, 2005)
(denying relief because plaintiff's protected speech occurred after officer began to detain
plaintiff), rev'd on other grounds, 477 F.3d 347 (6th Cir 2007).
[FN270]. See supra Part III.A.
[FN271]. Brown v. Middaugh, 41 F. Supp. 2d 172, 191 (N.D.N.Y. 1999).
[FN272]. See Watson, supra note 21, at 130 ([C]ourts can be aggressive in entering summary
judgment based on qualified immunity to protect well-meaning defendant officers from har-
assing litigation and help courts to avoid the prospect of resource-sapping trials.).
[FN273]. See Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)
(Determining whether a plaintiff's First Amendment rights were adversely affected by retali-
atory conduct is a fact intensive inquiry that focuses on the status of the speaker, the status of
the retaliator, the relationship between the speaker and the retaliator, and the nature of the re-
taliatory acts.).
[FN274]. See Watson, supra note 21, at 129 (In the last quarter-century, litigants have
squarely presented only twenty-nine actions for retaliatory arrest to federal courts of ap-
peals.).
[FN275]. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
[FN276]. Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002).
[FN277]. See supra Part I.B.2.
[FN278]. See Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) ([G]overnment
officials in general, and police officers in particular, may not exercise their authority for per-
sonal motives, particularly in response to real or perceived slights to their dignity. Surely any-
one who takes an oath of office knows--or should know--that much.).
[FN279]. For a discussion of qualified immunity, see supra notes 216-219 and accompanying
text.
[FN280]. See Crawford-El v. Britton, 523 U.S. 574, 598-600 (1998) (advocating use of such
pretrial screening mechanisms).
[FN282]. Cf. United States v. Rubio, 727 F.2d 786, 791 (9th Cir. 2004) (When activity pro-
tected by the First Amendment becomes the subject of a criminal investigation, the protections
afforded by the Fourth Amendment come into play.).
[FN283]. Everyone violates some aspect of the traffic code in some way during any short
drive. David A. Harris, The Reality of Racial Disparity in Criminal Justice: The Significance
of Data Collection, Law & Contemp. Probs., Summer 2003, at 71, 95.
[FN284]. United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005).
[FN286]. Complex causation cases are a different issue because these cases are governed by
the Supreme Court's intervening decision in Hartman v. Moore. See supra Part III.A.
[FN287]. See supra Parts II.A-B.
[FN289]. For a discussion of qualified immunity, see supra notes 216-219 and accompanying
text.
[FN290]. Crawford-El v. Britton, 523 U.S. 574, 589-91 (1998). In Crawford-El, the Court re-
viewed a D.C. Circuit rule requiring clear and convincing evidence of improper motive for
claims against public officials, a rule touted as a way to reduce the social cost of subjecting
these officials to discovery and trial. Id. at 580-86.
[FN291]. Id. at 593.
[FN292]. See supra Part III.A.
[FN294]. See supra Part III.B.
[FN295]. Addington v. Texas, 441 U.S. 418, 425 (1979) (quoting Tippett v. Maryland, 436
F.2d 1153, 1166 (4th Cir. 1971) (Sobelof, J., concurring in part and dissenting in part)).
END OF DOCUMENT
Michigan Law Review
October, 2008
Notes
*111 LIMITING A CONSTITUTIONAL TORT WITHOUT PROBABLE CAUSE: FIRST AMEND-
MENT RETALIATORY ARREST AFTER HARTMAN
Colin P. Watson [FNa1]
Copyright (c) 2008 Michigan Law Review Association; Colin P. Watson
Federal law provides a cause of action for individuals who are the target of adverse state
action taken in retaliation for their exercise of First Amendment rights. Because these constitu-
tional torts are easy to allege and hard to disprove, they raise difficult questions concerning
the proper balance between allowing meaningful access to the courts and protecting government
agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the
U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment re-
taliation actions by holding that plaintiffs in actions for retaliatory prosecution must plead and
prove a lack of probable cause for pressing the underlying charge as an element of their claim.
This Note argues that a careful reading of Hartman demonstrates that, despite the recent hold-
ings and dicta of several courts, Hartman neither requires nor supports a rule that the presence
of probable cause for effectuating the underlying arrest precludes a claim for First Amendment
retaliatory arrest (the no-probable-cause rule). This Note also seeks to demonstrate that pre-
Hartman cases applying the no-probable-cause rule in actions for retaliatory arrest are bad law.
After freeing courts from the constraints of Hartman and pre-Hartman circuit precedent, this
Note argues that both legal arguments and policy considerations counsel against application of
the no-probable-cause rule in actions for retaliatory arrest.
Table of Contents
Introduction 112
I. Hartman: Inapplicable in the Ar-
rest Context
116
A. Hartman Depends on the Pres-
ence of Objective Probable Cause Evid-
ence and the Causal Gap
117
1. The Facts 117
107 MILR 111 Page 1
107 Mich. L. Rev. 111
2. The Result Depends on the
Availability of Objective, Probative
Probable Cause Evidence
118
3. The Result Depends on the
Causal Gap that Makes Proving Lack
of Probable Cause Necessary
119
B. Hartman Does Not Control Be-
cause the Causal Gap Does Not Char-
acterize the Arrest Action
121
II. No Persuasive Legal Argument
Exists for Imposing the No-Prob-
able-Cause Rule in Arrest Actions
123
A. The Presence of Probable Cause
Does Not Prevent Plaintiffs from Prov-
ing the Causation Element
123
B. Cases Applying the No-
Probable-Cause Rule Pre-Hartman Are
Unpersuasive
126
III. Proponents Have Not Articu-
lated a Persuasive Policy Rationale for
Applying the Rule in Arrest Actions
128
A. Courts Can Manage Arrest Ac-
tions Without Making the Claim More
Difficult to Plead and Prove
129
B. Courts Should Not Fear a Surge
in Retaliatory-Arrest Actions
130
Conclusion 132
*112 Introduction
John Q. Activist is a well-known, if not notorious, government critic in the city of Hutchins. John
earns income as a freelance food critic but spends much of his time writing, publishing, and distribut-
ing a weekly newsletter identifying and decrying the wasteful government spending of Hutchins's tax
107 MILR 111 Page 2
107 Mich. L. Rev. 111
dollars. Of late, John has been particularly critical of the Hutchins Police Department's purchase of
costly consulting services from Homeland Security Inc. John has claimed in print that the city did not
bid the consulting contract competitively because of a romantic relationship between Police Chief
Berkeley and Homeland's vice president of community relations. Both Hutchins and Chief Berkeley
have denied the allegation.
Several weeks ago, while John was driving home from a long evening of editing at his downtown
office, a Hutchins police officer pulled him over for failing to fully stop at a stop sign. John was
clearly tired--his eyes were bloodshot and he was unable to give the exact hour or date. John ex-
plained to the officer that he had been up all night at his office attempting to meet a publishing dead-
line. The officer was finishing providing John with a warning regarding the dangers of driving while
fatigued--preparing to let John leave without a ticket--when he noticed a stack of John's Hutchins Ac-
countability Weekly newsletters piled on the passenger seat. The officer immediately recognized
John as a local agitator and his demeanor shifted. The officer said John looked like he had been
drinking and smelled a bit *113 odd--maybe like alcohol. The officer asked John to get out of the car
and, as he placed him under arrest for suspicion of drunk driving in violation of Hutchins law, re-
marked that I hope this doesn't affect your ability to get that dishonest rag of yours to all your so-
cialist friends in time for your next meeting.
John, freed from jail after ten long hours and no charges, was intimidated. Believing himself the
victim of an arrest made solely to punish him for his irreverent reporting and to deter him from criti-
cizing Hutchins officials in the future, John filed suit in federal district court. He cited the arresting
officer's shift in demeanor and threatening reference to his work to support his contention that his ar-
rest was unconstitutional retaliation for his exercise of his First Amendment right to publish carefully
researched stories critical of his local government. During pretrial proceedings, the defendant officer
claimed the arrest was fully constitutional because he had probable cause to believe that John had
been drinking--the bleary eyes and incoherence, he asserts, are hallmarks of an intoxicated driver.
The federal judge, crediting the officer's finding of probable cause, declined to inquire into the of-
ficer's actual reason for arresting John and dismissed the complaint. John is free, but reluctant to pub-
lish his weekly under what he perceives to be the threat of continued government harassment.
Courts agree that the First Amendment [FN1] protects individuals from retaliatory action motiv-
ated by the exercise of certain constitutional rights. [FN2] As the Tenth Circuit recently stated,
[a]lthough retaliation is not expressly discussed in the First Amendment, it may be actionable inas-
much as governmental retaliation tends to chill citizens' exercise of their constitutional rights.
[FN3]
Victims of state or federal retaliatory action may seek redress under section 1983 of the Civil
Rights Act [FN4] or Bivens v. Six Unknown Named Agents *114 of Federal Bureau of Narcotics.
[FN5] Plaintiffs seeking to recover for allegedly unconstitutional retaliation must plead and prove (1)
the existence of a right protected by the First Amendment; (2) that the exercise of that right was a
substantial motivating factor in the decision to take the adverse action; and (3) that the adverse action
chilled the exercise of the protected right. [FN6] Further, to prove the prima facie case, a plaintiff
must demonstrate that his exercise of a First-Amendment-protected right was the but-for cause of
the adverse action. [FN7] Conduct merely shaded by constitutionally impermissible motive does not
rise to the level of a constitutional violation. [FN8] Consequently, a defendant may avoid liability if
107 MILR 111 Page 3
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he can persuade the fact finder that he would have taken the challenged action notwithstanding any
personal animus engendered by First Amendment conduct. [FN9]
A minority of jurists do reject the idea that section 1983 of the Civil Rights Act provides a tort
cause of action for intent-based constitutional torts, but this rejection is limited. Critics of the major-
ity view maintain that section 1983, as enacted, was meant only to provide a cause of action for dam-
ages against state agents acting pursuant to a duly enacted, but unconstitutional, state statute. [FN10]
Notwithstanding their disagreement about the precise nature of the Civil Rights Act enacted by Con-
gress, these jurists do not actively seek to abrogate current section 1983 jurisprudence, but instead
support making intent-based constitutional torts more difficult to plead and prove. [FN11]
Courts agree less on the proper adjudicatory framework for resolving the subset of retaliation
claims concerned with allegedly unconstitutional arrest. [FN12] Until recently, federal courts of ap-
peals disagreed as to whether the *115 presence of probable cause for effectuating the arrest that is
the subject of a First Amendment retaliation action ought to preclude a plaintiff's recovery. [FN13]
The Second and Eleventh Circuits held that as a matter of law a police officer is not liable for uncon-
stitutional retaliation in an action by an arrestee where probable cause supported the underlying ar-
rest. [FN14] These two circuits adhere to a no-probable-cause rule that places an additional burden
on plaintiffs. [FN15] Reaching the opposite conclusion, the Sixth Circuit held that the existence of
probable cause does not preclude a plaintiff's constitutional claim. [FN16] While the existence of
probable cause has probative value in an action for retaliatory arrest, the Sixth Circuit reasoned, it by
no means determines the action. [FN17]
A recent decision by the U.S. Supreme Court drastically altered the First Amendment retaliation
landscape and complicated the role that probable cause plays in the analysis of claims for retaliatory
arrest. In its 2006 decision in Hartman, the Court resolved a different circuit disagreement and made
the absence of probable cause for pressing the underlying charge an element of a claim for First
Amendment retaliatory prosecution. [FN18] In the eighteen months since the Court decided Hartman,
courts addressing all manner of First Amendment retaliation actions have relied on Hartman in im-
posing the no-probable-cause rule in various, non-prosecution settings. [FN19] After Hartman the
*116 Sixth Circuit determined that its earlier cases rejecting a no-probable-cause rule in the retaliat-
ory-arrest action were no longer good law. [FN20]
Though a clearly defined circuit disagreement no longer exists, [FN21] the debate continues.
Some federal courts of appeals have yet to rule on whether probable cause precludes an action for re-
taliatory arrest, and so the debate continues. Several state and federal district courts in jurisdictions
whose highest court has not yet ruled on the no-probable-cause rule's application to actions for retali-
atory arrest have declined to read Hartman to apply to situations alleging anything other than retaliat-
ory prosecution, including actions for retaliatory arrest. [FN22]
This Note considers whether the Supreme Court's recent decision in Hartman supports a rule that
the presence of probable cause for effectuating an arrest should preclude a First Amendment retaliat-
ory-arrest action and concludes that it does not. It argues that courts, unconstrained by Hartman,
should decline to adopt the no-probable-cause rule in the arrest context. Part I analyzes the opinion in
Hartman and argues that it does not support a no-probable-cause rule in the arrest context because its
holding is limited to actions alleging retaliatory prosecution. Part II advocates rejecting the no-
107 MILR 111 Page 4
107 Mich. L. Rev. 111
probable-cause rule in the arrest context and argues that the existence of probable cause does not de-
termine the key issue in an action for retaliatory arrest: causation. Part II then challenges the thin leg-
al reasoning supporting the no-probable-cause rule pre-Hartman. It asserts that the Second and Elev-
enth Circuits, the rule's early adopters, implemented the rule through the application of impertinent
case law or adherence to questionable precedent and failed to articulate an argument for deviating
from the straightforward application of the claim's elements. Part III asserts that proponents of the
no-probable-cause rule have yet to offer a persuasive policy argument in favor of imposing the rule in
retaliatory-arrest actions.
I. Hartman: Inapplicable in the Arrest Context
Part I argues that the Supreme Court's recent decision in Hartman--requiring plaintiffs in First
Amendment retaliatory-prosecution actions to plead and prove the absence of probable cause for
pressing the underlying charge--does not dictate imposition of the no-probable-cause rule in non-
prosecution contexts. Section I.A describes the Hartman litigation, parses *117 the opinion, and iden-
tifies the two necessary considerations on which the Court's holding depends. Section I.B concludes
that because Hartman's holding is dependent on the presence of an unusual causal gap--arising where
the presence of an intervening actor complicates the link between the defendant's animus and the al-
legedly retaliatory action--and because retaliatory-arrest actions are not characterized by this gap,
Hartman's holding does not constrain lower courts in adjudicating actions for retaliatory arrest.
A. Hartman Depends on the Presence of Objective Probable Cause Evidence and the Causal Gap
Parsing Hartman is necessary to understanding the contours of its holding and its possible applic-
ation in the retaliatory-arrest context. If the principles underlying Hartman apply in the arrest setting,
then the newly formed circuit consensus is valid. If, however, Hartman's holding does not translate,
courts should look anew at the issue of whether the presence of probable cause should preclude an ac-
tion for retaliatory arrest. Section I.A.1 sets out the circumstance that gave rise to litigation in Hart-
man, providing readers with concrete facts that will enable a clearer understanding of retaliation ac-
tions generally and the Hartman litigation and opinion specifically. Section I.A.2 argues that Hartman
depends on the fact that retaliatory-prosecution actions reliably present objective and probative prob-
able cause evidence that speaks to the issue of causation. Section I.A.3 argues that Hartman's holding
further depends on the existence of a causal gap that renders proving the link between constitution-
ally protected conduct and adverse state action more difficult in the retaliatory-prosecution action
than in the normal retaliation action, and makes evidence of the absence of probable cause practically
necessary to prove an impermissible motive.
1. The Facts
Plaintiff William G. Moore, Jr. was the chief executive officer of REI, a manufacturer of multil-
ine optical character readers for use in interpreting multiple lines of printed text. [FN23] Moore suc-
cessfully lobbied against a U.S. Postal Service plan to adopt a single-line text system that would have
harmed his business, but then ultimately failed to procure a government contract for which his firm
was competing. [FN24] After losing the contract, Moore made several public statements critical of
the Postal Service. [FN25] A short time later, federal agents investigated and then charged Moore and
107 MILR 111 Page 5
107 Mich. L. Rev. 111
several others in connection with alleged kickbacks and improper conduct in the selection of a new
postmaster general. [FN26] The U.S. District Court for the District of *118 Columbia eventually dis-
missed the government's charges after finding a complete lack of direct evidence. [FN27]
Moore then initiated suit against five postal inspectors alleging that he was prosecuted in retali-
ation for his comments critical of the U.S. Postal Service, comments protected by the First Amend-
ment. [FN28] The U.S. District Court for the District of Columbia denied the defendant inspectors'
motion for summary judgment and the Court of Appeals for the District of Columbia affirmed.
[FN29] The inspectors subsequently moved for summary judgment based on qualified immunity, ar-
guing that probable cause supported the prosecution, but the district court denied the motion and the
D.C. Circuit affirmed. [FN30] The Supreme Court granted certiorari in order to resolve a circuit dis-
agreement as to whether probable cause for pressing the underlying charge should, as a matter of law,
defeat the claim for retaliatory prosecution. [FN31] The sole issue on appeal was whether the exist-
ence of probable cause precludes a claim for retaliatory prosecution. [FN32]
2. The Result Depends on the Availability of Objective, Probative Probable Cause Evidence
The Supreme Court in Hartman found that actions for retaliatory prosecution provided an oppor-
tunity to impose an objective standard on an intent-based constitutional tort that is otherwise difficult
to adjudicate. Because First Amendment retaliation actions center on the defendant's subjective in-
tent, [FN33] these claims, including those for retaliatory prosecution, present real adjudicatory diffi-
culties. [FN34] Defending against and adjudicating an action for First Amendment retaliation is prob-
lematic because retaliatory motive is easy to allege and hard to disprove. [FN35] An arrestee can,
with little difficulty, file a complaint alleging that his arrest was the result of unconstitutional retali-
ation. A defendant officer can do little to prove definitively that he effectuated the arrest for permiss-
ible reasons, and a successful defense of the action depends largely on whether the fact finder be-
lieves the officer's version of the arrest over the plaintiff's. The defendant investigators in *119 Hart-
man invoked these difficulties to support their request for the protection of a no-probable-cause rule.
[FN36]
The action for retaliatory prosecution is different. Unlike many other actions alleging First
Amendment retaliation, [FN37] actions for retaliatory prosecution are consistently characterized by a
dispute over one central fact: the presence or absence of probable cause for pressing the underlying
charge. The Court recognized that the significance of probable cause or the lack of it looms large,
being a potential feature of every case, with obvious evidentiary value. [FN38] This probable cause
evidence is objective and speaks directly to the issue of whether or not the prosecution of the under-
lying charge was the result of unconstitutional retaliation. [FN39]
The Supreme Court justified its adoption of the objective no-probable-cause rule in part by ar-
guing that lower courts could implement a rule making special use of probable cause evidence in the
retaliatory-prosecution context with relative ease. Valuable probable cause evidence is always avail-
able [FN40] and [t]he issue [of probable cause] is . . . likely to be raised by some party at some
point [FN41] in the retaliatory-prosecution context. Where the parties to the litigation will already
have access to the evidence, and are likely already planning on devoting time and resources to disput-
ing that evidence, courts can implement the rule without increasing the burden on either the litigants
or the courts. [FN42]
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107 Mich. L. Rev. 111
3. The Result Depends on the Causal Gap that Makes Proving Lack of Probable Cause Neces-
sary
Actions for retaliatory prosecution are characterized by a causal gap that makes demonstrating the
link between the defendant's animus and the alleged retaliation unusually complicated, and makes the
presence of evidence that can bridge this gap all but necessary to prove retaliation. In the *120 nor-
mal action alleging unconstitutional retaliation, a plaintiff makes the straightforward claim that an in-
dividual government officer undertook some adverse action as a result of personal animus en-
gendered by the plaintiff's exercise of First Amendment rights. [FN43] The plaintiff can usually
prove the link between the actor's animus and the retaliatory action with little complication. [FN44]
In the action for retaliatory prosecution, however, the link between animus and retaliatory action
is more complex. [FN45] Because a prosecutor enjoys absolute immunity from suit related to prosec-
utorial decisions, [FN46] the plaintiff in a retaliatory-prosecution suit must normally sue investigat-
ors, police officers, or other government officials involved in the broader prosecution. [FN47] Con-
sequently, plaintiffs must not only demonstrate animus on the part of the defendant officer or invest-
igator but also that the defendant successfully induced the presumptively disinterested prosecutor to
press charges that he would not otherwise have pressed. [FN48] A disconnect then exists--termed the
causal gap--between the alleged animus of the defendant(s) and the adverse action. [FN49]
This break in the chain of causation makes the already valuable evidence of a lack of probable
cause uniquely necessary and provides the ultimate rationale for the Court's adoption of the no-
probable-cause rule in Hartman. The Court unambiguously stated that [i]t is, instead, the need to
prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution
cases, that provides the strongest justification for the no-probable-cause requirement. [FN50] The
causal gap makes it practically necessary to show that no probable cause existed in order to rebut the
strong presumption that the intervening prosecutor acted independently and without unconstitutional
bias. As the court explained, [s]ome sort of allegation, then, is needed both to bridge the gap
between the nonprosecuting government agent's motive and the prosecutor's action, and to address
the presumption of prosecutorial regularity. [FN51] Absent a showing that no probable*121 cause
existed for pressing the underlying charge, in the Court's opinion, the presence of an intervening, pre-
sumptively disinterested, prosecutor is enough to defeat the claim. [FN52] If, however, the plaintiff
can bridge the causal gap by demonstrating the absence of probable cause, he will give the claim of
retaliation . . . some vitality [FN53] and sufficiently justify the adjudication of his tort action.
B. Hartman Does Not Control Because the Causal Gap Does Not Characterize the Arrest Action
Hartman does not control in the retaliatory-arrest context because of the two necessary considera-
tions upon which the Hartman holding depends; [FN54] only the centrality and availability of object-
ive, probative probable cause evidence characterizes the action for retaliatory arrest. [FN55] The Su-
preme Court explicitly stated that absent the causal gap found in the action for retaliatory prosecu-
tion, the adoption of the no-probable-cause rule would have been inappropriate: [the centrality and
availability of objective probable cause evidence] alone does not mean, of course, that a . . . plaintiff
should be required to plead and prove no probable cause. [FN56] In the normal action for retaliatory
arrest there is no causal gap: the plaintiff alleges that the animus of one identified defendant police
107 MILR 111 Page 7
107 Mich. L. Rev. 111
officer caused that officer to arrest him when he otherwise would not have done so. [FN57]
Evidence of a lack of probable cause is relevant, but insufficient to warrant application of a no-
probable-cause rule. True, a demonstrable absence of probable cause in the arrest context strongly
suggests the presence of an unconstitutional motive, and undoubtedly strengthens the plaintiff's
claim. Conceding the point, a federal district court in Wisconsin recently observed that the absence
of probable cause is strong evidence that the officer's true *122 motive for the arrest was an illegal
one. [FN58] But as the same court ultimately held, absent a causal gap that requires bridging, prov-
ing the absence of probable cause is not necessary, and, by Hartman's reasoning, a rule mandating
that plaintiffs prove its absence is unjustified. [FN59]
Some courts have focused on dicta in Hartman to suggest that its holding sweeps broadly, apply-
ing in actions in which no gap renders the probable cause evidence all but necessary, but courts
should reject this argument. The Sixth Circuit has argued that Hartman appears to acknowledge that
its rule sweeps broadly. [FN60] In Hartman, the Supreme Court did concede that not all actions for
retaliatory prosecution present complicated causation issues, admitting that the requisite causation is
usually more complex than it is in other retaliation cases. [FN61] Accordingly, the Court appeared
to accept that its no-probable-cause rule would unfairly burden plaintiffs in some actions in which
proving the absence of probable cause was not necessary to bridge the causal gap. [FN62] The Court
appeared willing to accept that its holding . . . would come at a cost [FN63] and that in some ex-
ceptional retaliatory-prosecution actions where the intervening prosecutor was himself not disinter-
ested--either because he had his own animus or was sufficiently influenced by the defendants-
-plaintiffs would be unnecessarily burdened. [FN64]
Courts should not read this language to apply Hartman broadly. The Court, however, clearly
noted that these exceptional actions would be rare and consequently poor guides in structuring [the]
cause of action. [FN65] To suggest,*123 then, that this language justifies the imposition of the no-
probable-cause rule in a class of actions in which the overwhelming majority of plaintiffs would be
burdened without the practical necessity engendered by the causal gap perverts this judicial com-
promise. [FN66]
II. No Persuasive Legal Argument Exists for Imposing the No-Probable-Cause Rule in Arrest Actions
This Part argues that the presence of probable cause is not determinative in retaliatory-arrest ac-
tions and that pre-Hartman courts applying the no-probable-cause rule did so without providing pre-
cedential support or a novel, compelling legal rationale for their holdings. Section II.A argues that the
presence of probable cause in the retaliatory-arrest context does nothing more than provide one pos-
sible permissible justification for undertaking the challenged arrest. Section II.A then asserts that the
application of an established constitutional principle--that an act taken in retaliation for the exercise
of First Amendment rights is actionable even if the act would have been proper when taken for a dif-
ferent reason--demonstrates that the presence of probable cause does not determine, as a matter of
law, the causation issue in a retaliatory-arrest action. Section II.B identifies the seminal no-
probable-cause rule cases in the Eleventh and Second Circuits--the two federal courts of appeals that
applied the rule pre-Hartman--and argues that courts should reject them for relying on impertinent
case law and failing to articulate novel, compelling legal grounds on which to base their holdings.
107 MILR 111 Page 8
107 Mich. L. Rev. 111
A. The Presence of Probable Cause Does Not Prevent Plaintiffs from Proving the Causation Element
The presence of probable cause does not determine the action for retaliatory arrest because it
simply provides one possible justification for the challenged arrest, and under established Supreme
Court precedent, the presence of an alternate, non-retaliatory justification for the challenged action
does not, as a matter of law, defeat a retaliation claim. A First Amendment challenge to an arrest, un-
like, for instance, a Fourth Amendment [FN67] challenge, does not rest on an allegation that the ar-
rest was unsupported by probable *124 cause. [FN68] The First Amendment guarantees freedom
from interference with, inter alia, speech, assembly, and religious rights. [FN69]
In the arrest context, then, the First Amendment does not proscribe arrests unsupported by prob-
able cause, but prevents the government from stifling rights in a way that it could not through legisla-
tion or regulation. [FN70] The First Amendment thus concerns itself with impermissible intent in an
effort to prevent the government from achieving a kind of constitutional end around that would allow
it to circumvent the First Amendment's restrictions. [FN71] So if the arresting officer's desire to re-
taliate was the actual cause of the arrest, the arrest will be actionable under the First Amendment.
[FN72] The presence of probable cause does not conclusively determine actual intent--it provides but
one possible explanation for the occurrence of the arrest. Consequently, a plaintiff in a retaliation
challenge to an arrest can logically maintain that his arrest was the actual result of impermissible re-
taliation even where the arrest was supported by judicially validated probable cause.
Under established Supreme Court precedent, in an action for retaliatory arrest, the existence of
one possible permissible justification for an allegedly retaliatory arrest does not, as a matter of law,
render it impossible to prove that the arrest was, in fact, unconstitutional. In the First Amendment re-
taliation context, the Supreme Court has held that state action taken for a constitutionally impermiss-
ible reason is actionable even if it would have been proper when taken for a different, fully legal reas-
on:
[We have] made clear that even though a person has no right to a valuable governmental
benefit and even though the government may deny him the benefit for any number of reasons,
there are some reasons upon which *125 the government may not rely. It may not deny a benefit
to a person on a basis that infringes his constitutionally protected interests--especially, his in-
terest in freedom of speech. [FN73]
The federal courts of appeals have fully embraced this holding in their First Amendment retali-
ation jurisprudence. [FN74] The Sixth Circuit expressed this general acceptance when it held that
[t]he law is well established that [a]n act taken in retaliation for the exercise of a constitutionally
protected right is actionable under 1983 even if the act, when taken for a different reason, would
have been proper. [FN75]
Importantly, the Supreme Court has not retreated from this holding: its imposition of the no-
probable-cause rule notwithstanding, the Supreme Court reaffirmed this holding in Hartman. [FN76]
In the arrest context, then, the fact that a defendant officer had valid grounds for arresting a plaintiff,
independent of any impermissible speech-related animus, does not mean that the officer did not arrest
for an unconstitutional retaliatory reason. [FN77] Consequently, the existence of probable cause for
effectuating the underlying arrest should not, as a matter of law, negate the causation element of the
claim. [FN78] Crucially, the presence of probable cause does not mean that retaliatory motive was
107 MILR 111 Page 9
107 Mich. L. Rev. 111
not the but-for cause of the arrest. Though the presence or absence of probable cause speaks *126
directly to the defendant officer's motivation in arresting the plaintiff, [FN79] it should not ultimately
determine the issue of causation. [FN80]
B. Cases Applying the No-Probable-Cause Rule Pre-Hartman Are Unpersuasive
The federal courts of appeals cases applying the no-probable-cause rule before the Supreme
Court's decision in Hartman were wrongly decided. Courts should reject the Eleventh Circuit's adop-
tion of the no-probable-cause rule because it relied on a decision that did not address a claim for re-
taliation, and consequently did not address the issue of impermissible intent that is central to all re-
taliation actions. In Redd v. City of Enterprise, the Eleventh Circuit granted summary judgment in fa-
vor of defendant police officers based on qualified immunity in an action alleging First Amendment
retaliatory arrest. [FN81] It held that the officers, in arresting protestors with probable cause to be-
lieve they were in violation of a local disorderly conduct statute, did not violate plaintiffs' clearly es-
tablished First Amendment rights. [FN82]
For the proposition that the officers did not violate any established speech rights, the Redd court
relied on Zurcher v. Stanford Daily, [FN83] but Zurcher did not involve the issue central to retali-
ation actions: retaliatory animus. In Zurcher, police officers executed a warrant at the offices of the
Stanford University newspaper seeking to obtain photographs and other documentary evidence that
the officers believed would help them identify *127 individuals who they suspected had violated laws
during a protest. [FN84] Several students at the newspaper filed suit under 1983 [FN85] alleging vi-
olation of their First and Fourth Amendment rights. [FN86] The students challenged the execution of
the warrant, arguing that only a subpoena duces tecum [FN87] could properly ensure the protection of
vital First Amendment rights when the government wished to execute a search warrant. [FN88] Cru-
cially, the Zurcher plaintiffs made no allegation that the defendant officers sought or executed the
warrant in an effort to punish the newspaper or its employees for the exercise of protected rights.
Without such an allegation of unconstitutional motive, one simply cannot read Zurcher to support
the imposition of the no-probable-cause rule in retaliatory-arrest actions. Improper motivation is the
defining characteristic of an action for retaliatory arrest and one cannot ignore this in adjudicating the
dispute. [FN89] In this setting, holding that a properly motivated search supported by probable cause
does not violate First Amendment rights is both uncontroversial and wholly silent on the crucial is-
sues in a retaliatory-arrest action. Readers of Redd and its progeny should demand more before cred-
iting the Eleventh Circuit's application of the no-probable-cause rule.
Courts should also reject the Second Circuit's pre-Hartman rule holding that the existence of
probable cause precludes an action for retaliatory arrest. The seminal case, Mozzochi v. Borden,
[FN90] has two significant weaknesses. First, the Mozzochi court summarily refused to inquire into
the defendant officer's motivation for arresting the plaintiff in an action for retaliatory arrest. Mozzo-
chi held that because there was probable cause in this case to believe that [plaintiff] violated the har-
assment statute, we will not examine the defendants' motives in reporting [plaintiff's] actions to the
police for prosecution. [FN91] Courts should question Mozzochi's refusal, without providing any
justification, to consider the defendant's intent in an intent-based constitutional tort. [FN92]
*128 Second, a subsequent Second Circuit decision seriously undermined Mozzochi's central
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107 Mich. L. Rev. 111
holding. In Blue v. Koren, the Second Circuit called Mozzochi into doubt for its suggestion that
plaintiffs cannot maintain retaliatory-arrest actions where the underlying arrest is supported by prob-
able cause: Mozzochi [is] troubling in that [it] appear[s] to negate the existence of a retaliation claim
involving arrests. If probable cause provides qualified immunity from a retaliation claim, then such a
claim can be asserted only in cases in which a false arrest claim can also be made. [FN93] Courts
adjudicating retaliatory-arrest claims should not rely on this weakened opinion.
III. Proponents Have Not Articulated a Persuasive Policy Rationale for Applying the Rule in Arrest
Actions
Neither existing legal doctrine [FN94] nor controlling precedent [FN95] recommend imposing the
no-probable-cause rule in actions for retaliatory arrest, and no court or scholar has yet articulated a
sufficiently persuasive policy argument in favor of applying the rule to retaliatory-arrest claims.
[FN96] This Part argues that, though intent-based constitutional torts present adjudicatory diffi-
culties, [FN97] proponents of the no-probable-cause rule currently overstate the worries underlying
their principle arguments for the imposition of the rule. Section III.A argues that the litigation statist-
ics demonstrate that the volume of retaliatory-arrest actions is relatively unremarkable, and should
mute concerns over a need to reduce the number of such actions by making the claim more difficult
to plead and prove. Section III.A further argues that the current volume of retaliatory-arrest litigation
will not impair the quality of policing because officers can work free from worries about being haled
into court knowing that judges can enter summary judgment based on qualified immunity to protect
well-meaning defendants from the burdens of protracted litigation. Section III.B argues that courts
and government agents need not fear a surge in retaliatory-arrest actions once courts fully reject the
no-probable-cause rule in the arrest context, emphasizing the role that qualified immunity can play in
protecting officers from spurious allegations and freeing dockets of frivolous litigation.
*129 A. Courts Can Manage Arrest Actions Without Making the Claim More Difficult to Plead and
Prove
Retaliatory-arrest actions are not so prevalent or difficult to adjudicate that they unduly burden
the nation's courts and inhibit defendant officers' ability to effectively police. Proponents of the no-
probable-cause rule have urged courts to make intent-based constitutional torts more difficult to plead
and prove because the actions are clogging courts' dockets and unduly burdening defendant govern-
ment agents, impairing their ability to effectively police. [FN98]
The litigation statistics, however, do not reveal a volume of retaliatory-arrest actions worthy of
concern. In the last quarter-century, litigants have squarely presented only twenty-nine actions for re-
taliatory arrest to federal courts of appeals. [FN99] The Supreme Court, arguing in Hartman that the
number of retaliatory-prosecution actions was wholly reasonable and not unduly burdening govern-
ment defendants or adjudicating courts, used an identical metric and identified a similar incidence of
such actions. [FN100] The Court found that the number of retaliatory-prosecution claims was insuffi-
cient cause for concern and argued that there is not much leverage in the fear that without a filter to
screen out claims [defendant] federal prosecutors and federal courts will be unduly put upon by the
volume of litigation. [FN101]
107 Mich. L. Rev. 111
Judges can control the courts' dockets and protect government agents from those retaliatory-arrest
claims that are filed by utilizing several procedural tools, including summary judgment based on
qualified immunity. As the Supreme Court argued in Crawford-El, trial courts adjudicating intent-
based constitutional torts can lessen the litigation burden on defendants by employing several proced-
ural tools: courts can require plaintiffs to provide sufficiently particularized pleadings, aggressively
manage discovery, and use summary judgment as the ultimate screen to weed out truly insubstantial
lawsuits. [FN102]
*130 Most importantly, courts can be aggressive in entering summary judgment based on quali-
fied immunity to protect well-meaning defendant officers from harassing litigation and help courts to
avoid the prospect of resource-sapping trials. Qualified immunity protects a defendant government
agent from liability if he or she could have reasonably believed his or her conduct to be lawful in
light of clearly established law and the information [that the defendant] possessed. [FN103] Quali-
fied immunity is so defendant-friendly that the Eighth Circuit has observed that [t]he qualified im-
munity standard gives ample room for mistaken judgments by protecting all but the plainly incompet-
ent or those who knowingly violate the law. [FN104] Consequently, well-meaning officers who do
not knowingly violate the law can effectively execute their duties without fearing that they are one
arrest away from facing debilitating litigation. Perhaps most importantly for those who worry that a
claim for retaliatory arrest is a validated ticket to trial, courts decide the issue of qualified immunity
pretrial as a matter of law because [t]he entitlement is an immunity from suit rather than a mere de-
fense to liability. [FN105]
B. Courts Should Not Fear a Surge in Retaliatory-Arrest Actions
In light of the central characteristics of the First Amendment retaliation action and the protections
offered by qualified immunity, proponents of the no-probable-cause rule should not worry that, once
the rule is fully and publicly rejected, arrestees will refashion non-First Amendment challenges as
First Amendment challenges, causing a surge in retaliatory-arrest actions. A federal district court in
Indiana, in imposing the no-probable-cause rule, articulated the fear that enterprising plaintiffs would
transform constitutional*131 challenges to arrests that are defeated by probable cause [FN106] into
First Amendment challenges in the face of more plaintiff-friendly claim elements: [failing to adopt
the rule] would allow numerous plaintiffs to bring Fourth Amendment claims that would otherwise be
dismissed by relabeling them as First Amendment retaliation claims. [FN107]
This argument overlooks the fact that not all arrests that plaintiffs might challenge implicate First
Amendment concerns. [FN108] As part of a claim for retaliatory arrest, a plaintiff must allege the ex-
ercise of a protected right and the centrality of that right in the decision to arrest. [FN109] The Su-
preme Court has made clear that [w]hen intent is an element of a constitutional violation . . . the
primary focus is not on any possible animus directed at the plaintiff; rather, it is more specific, such
as . . . to deter public comment on a specific issue of public importance. [FN110] Although plaintiffs
are free in practice to plead facts not in existence, a plaintiff's ability to fabricate does not warrant
changing the elements of an established constitutional tort. [FN111]
Because the extent to which the plaintiff's conduct is clearly protected by the First Amendment is
central to determining the reasonableness of the defendant's conduct, defendant officers are ad-
107 Mich. L. Rev. 111
equately protected from the creative pleading of plaintiffs seeking to apply the retaliatory-arrest claim
elements to arrests that do not implicate First Amendment concerns. For a government agent to be
held liable for violating an individual's constitutional rights, the Supreme Court has held that [t]he
contours of the right must be sufficiently clear that a reasonable official would understand that what
he is doing violates that right. [FN112]
Plaintiffs disingenuously pleading that their arrests implicated First Amendment concerns would
have trouble meeting this standard because they would have to creatively redefine unprotected con-
duct to bring it within *132 the protection of the First Amendment. Consequently, even if a court
were to ultimately find the plaintiff's creatively defined right was protected by the First Amendment,
the officer would be entitled to summary judgment based on qualified immunity because he could not
reasonably have known such conduct was constitutionally protected. The more spurious the retaliat-
ory-arrest claim, the more likely the defendant officer will be able to avail himself of the protections
offered by qualified immunity by arguing that the creatively pleaded First Amendment right is not
clearly established.
Conclusion
The First Amendment protects rights at the very heart of the American democratic experiment
[FN113] and these rights are deserving of the most zealous protection. Neither Hartman, nor the judi-
cially defined elements of the claim, nor the pre-Hartman decisions of the Second and Eleventh Cir-
cuits, should compel courts to find the presence of probable cause preclusive in an action for retaliat-
ory arrest. A strong desire to screen spurious claims from the courts and to protect government agents
from vexatious litigation also does not favor imposition of the no-probable-cause rule. Indeed, courts
rejecting the no-probable-cause rule are not only capable of handling First Amendment retaliation
claims--individually and in the aggregate--but are advancing important constitutional values.
[FNa1]. J.D. candidate, May 2009. I would like to thank my Note Editor, Margaret Barry, and the rest
of the Volume 106 Notes Office, especially Brittany Parling, Benedict Schweigert, and Leigh
Wasserstrom, for helping this Note through the publication process. I would also like to thank Kath-
ryn Drenning for her contribution during the read process. Finally, I would like to thank Eric White
for helpful comments on an early draft.
[FN1]. U.S. Const. amend. I (Congress shall make no law ... abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble, and to petition the Government for a re-
dress of grievances.).
[FN2]. See, e.g., Norwell v. City of Cincinnati, 414 U.S. 14 (1973); Evans v. Fogarty, 241 F. App'x
542 (10th Cir. 2007); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) ([A]ny action
to punish or deter [First-Amendment-protected] speech--such as stopping or hassling the speaker-- is
categorically prohibited by the Constitution.); Michael Avery et al., Police Misconduct: Law and
Litigation 2:28, at 134 (3d ed. 2007) (Law enforcement activities designed to retaliate against per-
sons for criticizing government officials, or filing lawsuits against them, violate the First Amend-
ment.).
107 Mich. L. Rev. 111
[FN3]. Evans, 241 F. App'x at 550 (quoting Perez v. Ellington 421 F.3d 1128, 1131 (10th Cir. 2005)).
[FN4]. 42 U.S.C. 1983 (2000). Section 1983 of the Civil Rights Act grants citizens a civil cause of
action for damages against constitutional violations committed by individuals acting in their capacity
as agents of a state. Christopher J. Pettit, The Evolution of Government Liability Under Section 1983,
24 St. Mary's L.J. 145, 146-47 (1992). To the consternation of many jurists and academics (and no
doubt targeted state actors), section 1983 has increasingly become a source of litigation. E.g., Susan-
ah M. Mead, Evolution of the Species of Tort Liability Created by 42 U.S.C. 1983: Can Constitu-
tional Tort Be Saved From Extinction?, 55 Fordham L. Rev. 1, 10-13 (1986).
[FN5]. 403 U.S. 388 (1971). Bivens provides individuals the same damages remedy against federal
government agents that is available against agents of the individual states under section1983. See,
e.g., Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) ([A] Bivens action is the federal analog to
suits brought against state officials under ... 42 U.S.C. 1983.).
[FN6]. E.g., Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir.
2007) (outlining the test applied across circuits in First Amendment retaliation claims).
[FN7]. E.g., Hartman, 547 U.S. at 256 ([W]e have held that retaliation is subject to recovery as the
but-for cause of official action offending the Constitution.); Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 285-86 (1977); Ctr. for Bio-Ethical Reform, 477 F.3d at 823.
[FN8]. See Hartman, 547 U.S. at 256.
[FN9]. Ctr. for Bio-Ethical Reform, 477 F.3d at 823.
[FN10]. See, e.g., Monroe v. Pape, 365 U.S. 167, 202-59 (1961) (Frankfurter, J., dissenting) (arguing
against reading the Civil Rights Act to provide a cause of action against government agents not acting
pursuant to a duly enacted statute).
[FN11]. E.g., Crawford-El v. Britton, 523 U.S. 574, 611-12 (1998) (Scalia, J., dissenting) (expressing
displeasure with the current state of section 1983 jurisprudence but advocating the adoption of a qual-
ified immunity rule that would only make prosecuting such actions more difficult).
[FN12]. Arrest is just one form of state action that can give rise to an action for First Amendment re-
taliation. The impermissible retaliation can take many forms. See Hartman, 547 U.S. 250 (criminal
prosecution); Crawford-El, 523 U.S. 574 (intentional misdirection of prisoner's personal effects);
Harlow v. Fitzgerald, 457 U.S. 800 (1982) (termination of employment); Mt. Healthy, 429 U.S. 274
(same); Williams v. City of Carl Junction, 480 F.3d 871 (8th Cir. 2007) (municipal citation); Skoog
v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006) (search and seizure); Bloch v. Ribar, 156
F.3d 673 (6th Cir. 1998) (disclosure of sensitive personal information regarding plaintiff's rape);
Musso v. Hourigan, 836 F.2d 736 (2d Cir. 1988) (denial of opportunity to speak at public meeting).
[FN13]. Baldauf v. Davidson (Baldauf I), No. 1:04-cv-1571-JDT-TAB, 2007 WL 1202911, at *5-6
(S.D. Ind. Apr. 23, 2007) (discussing the existence and nature of the disagreement), modified, 2007
WL 2156065 (S.D. Ind. July 24, 2007).
[FN14]. See, e.g., Dahl v. Holley, 312 F.3d 1228 (11th Cir. 2002); Curley v. Vill. of Suffern, 268
107 Mich. L. Rev. 111
F.3d 65 (2d Cir. 2001); Redd v. City of Enterprise, 140 F.3d 1378 (11th Cir. 1998); Singer v. Fulton
County Sheriff, 63 F.3d 110 (2d Cir. 1995); Mozzochi v. Borden, 959 F.2d 1174 (2d Cir. 1992);
Ybarra v. City of Miami, No. 02-20972-CIV, 2003 WL 25564426 (S.D. Fla. Aug. 12, 2003).
[FN15]. The Supreme Court has adopted this terminology in addressing the issue in the context of ac-
tions alleging retaliatory prosecution. Hartman, 547 U.S. at 258-59.
[FN16]. Greene v. Barber, 310 F.3d 889 (6th Cir. 2002). The Ninth Circuit, while adjudicating a re-
taliation claim, asserted that the Tenth Circuit is in agreement with the Sixth Circuit. Skoog, 469 F.3d
at 1232 n.31 (citing DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990)). However, a review of
the case law reveals that the Tenth Circuit's position is less than clear. See DeLoach, 922 F.2d at 620
n.2 (The firmness of [defendant's] conviction about [plaintiff's] guilt [with regard to the underlying
crime] is not relevant to, and does not justify ... retaliatory action against [plaintiff].), cert. denied,
502 U.S. 814 (1991). Crucially, this Tenth Circuit case does not clearly address the role that objective
probable cause for effectuating the arrest ought to play in the legal calculus.
[FN17]. Greene, 310 F.3d at 895, 896-97.
[FN18]. Hartman, 547 U.S. at 265-66. Retaliatory-prosecution actions are simply actions brought to
challenge the constitutionality of a prosecutor's decision to file and pursue criminal or civil charges.
Prior to Hartman, actions for retaliatory prosecution were litigated in the same manner as any other
First Amendment retaliation action. See supra text accompanying notes 6-9.
[FN19]. Williams v. City of Carl Junction, 480 F.3d 871, 876 (8th Cir. 2007) (We agree ... that the
Supreme Court's holding in Hartman is broad enough to apply even where intervening actions by a
prosecutor are not present, and we conclude that the Hartman rule applies in this [action alleging re-
taliatory citation].); Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) ([I]n its analysis, Hartman
appears to acknowledge that its rule sweeps broadly ....); Baldauf v. Davidson (Baldauf II), No.
1:04-cv-1571-JDT-TAB, 2007 WL 2156065 (S.D. Ind. July 24, 2007) (reading Hartman to require
plaintiff in a retaliatory-arrest action to plead and prove the lack of probable cause); Hansen v. Willi-
amson, 440 F. Supp. 2d 663, 676 (E.D. Mich. 2006).
[FN20]. See Hansen, 440 F. Supp. 2d at 676 (purporting to recognize the abrogation of the primary
Sixth Circuit case refusing to find the presence of probable cause determinative).
[FN21]. The elimination of the circuit disagreement is complete to the extent that the Tenth Circuit
did not clearly hold that the presence of probable cause is not dispositive in an action for retaliatory
arrest. See supra note 16.
[FN22]. Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) (reading Hartman nar-
rowly and refusing to apply its holding in an action for retaliatory search and seizure); Gullick v. Ott,
517 F. Supp. 2d 1063, 1070-72 (W.D. Wis. 2007) (analyzing and refusing to apply Hartman in an ac-
tion for retaliatory arrest); Grassilli v. Barr, 48 Cal. Rptr. 3d 715, 731-33 (Cal. Ct. App. 2006)
(same).
[FN23]. Hartman, 547 U.S. at 252.
107 Mich. L. Rev. 111
[FN24]. Id. at 252-53.
[FN25]. Id. at 253.
[FN26]. Id.
[FN27]. Id. at 254 (quoting United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596 (D.D.C.
1989)).
[FN28]. Hartman, 547 U.S. at 254.
[FN29]. Moore v. United States, 213 F.3d 705 (D.C. Cir. 2000).
[FN30]. Moore v. Hartman, 388 F.3d 871 (D.C. Cir. 2004), rev'd, 547 U.S. 250.
[FN31]. Hartman, 547 U.S. at 255-56.
[FN32]. Id. at 256-57.
[FN33]. See infra note 71 and accompanying text.
[FN34]. Bloch v. Ribar, 156 F.3d 673, 682 (6th Cir. 1998) ([C]laims involving proof of a
[defendant's] intent seldom lend themselves to summary disposition.) (alteration in original)
(quoting Curtis v. Story, No. 87-5988, 1988 WL 125361, at *3 (6th Cir. Nov. 25, 1988)).
[FN35]. Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (quoting Crawford-El v. Britton, 93 F.3d
813, 821 (D.C. Cir. 1996) (en banc)).
[FN36]. See Hartman, 547 U.S. at 257 (The [defendant] inspectors argue [that a] plaintiff can afflict
a public officer with disruption and expense by alleging nothing more, in practical terms, than action
with a retaliatory animus, a subjective condition too easy to claim and too hard to defend against.).
[FN37]. In, for instance, an action for retaliatory termination of employment, there is no objective
standard outlining the instances in which termination is appropriate. Id. at 258.
[FN38]. Id. at 265.
[FN39]. Proving the absence of probable cause for pressing the underlying claim does much to help
the plaintiff prove that his exercise of First Amendment rights was the but-for cause of his prosecu-
tion. See Gullick v. Ott, 517 F. Supp. 2d 1063, 1070 (W.D. Wis. 2007) (highlighting the probative
value of probable cause evidence in assessing whether adverse state action was the result of unconsti-
tutional retaliation).
[FN40]. Hartman, 547 U.S. at 261 ([In the prosecution context] there will always be a distinct body
of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causa-
tion, namely evidence showing whether there was or was not probable cause to bring the criminal
charge.).
[FN41]. Id. at 265.
107 Mich. L. Rev. 111
[FN42]. Id. (Our sense is that the very significance of probable cause means that a requirement to
plead and prove its absence will usually be cost free by any incremental reckoning.).
[FN43]. Id.
[FN44]. See id. at 261. This is not to say, however, that persuading a fact finder that the desire to re-
taliate was the but-for cause of the adverse action is easy.
[FN45]. Id. at 259 ([T]he need to demonstrate causation in the retaliatory-prosecution context
presents an additional difficulty that can be understood by comparing the requisite causation in ordin-
ary retaliation claims ... with causation in [retaliatory-prosecution claims].).
[FN46]. Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
[FN47]. Hartman, 547 U.S. at 261-62 ([An] action for retaliatory prosecution will not be brought
against the prosecutor, who is absolutely immune from liability for the decision to prosecute. Instead
the defendant will be a nonprosecutor, an official, like an inspector ....) (citation omitted).
[FN48]. Id. at 262. The Ninth Circuit, relying on language from Hartman, has noted that a retaliatory-
prosecution action is really for successful retaliatory inducement to prosecute. Skoog v. County
of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) (quoting Hartman, 547 U.S. at 262).
[FN49]. Hartman, 547 U.S. at 264.
[FN50]. Id. at 259.
[FN51]. Id. at 263.
[FN52]. See id. ([T]his presumption that a prosecutor has legitimate grounds for the action he takes
is one we do not lightly discard, given our position that judicial intrusion into executive discretion of
such high order should be minimal.).
[FN53]. Id. at 265.
[FN54]. See supra Sections I.A.2-3.
[FN55]. Gullick v. Ott, 517 F. Supp. 2d 1063, 1072 (W.D. Wis. 2007) ([I]f an officer had probable
cause for making an arrest, that tends to undermine an allegation that the arrest was fabricated, just as
the absence of probable cause is strong evidence that the officer's true motive for the arrest was an il-
legal one.).
[FN56]. Hartman, 547 U.S. at 261; see Gullick, 517 F. Supp. 2d at 1070 (The Court [inHartman]
saw [the causal gap] as dispositive ....).
[FN57]. Gullick, 517 F. Supp. 2d at 1071 ([C]oncerns raised by ... a more complex chain of causa-
tion ... are not implicated when no prosecutor is involved in the claim and when the named defendant
is directly responsible for the plaintiff's alleged injuries, as in this case [for retaliatory arrest].);
Baldauf v. Davidson (Baldauf II), No. 1:04-cv-1571-JDT-TAB, 2007 WL 2156065, at *2 (S.D. Ind.
July 24, 2007) (At first glance, no such complex causation problems are present when a person
107 Mich. L. Rev. 111
brings a retaliatory arrest claim that focuses entirely on an officer's bodily seizure of a plaintiff
through the power of arrest.); cf. Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir.
2006) (holding that the seizure of certain personal effects in retaliation for the exercise of First
Amendment rights did not involve multi-layered causation).
[FN58]. Gullick, 517 F. Supp. 2d at 1072.
[FN59]. Id. at 1070-71 (refusing to require a plaintiff in an action for retaliatory arrest to plead and
prove the absence of probable cause). The Sixth Circuit has missed Hartman's reliance on the causal
gap. See Barnes v. Wright, 449 F.3d 709, 719 (6th Cir. 2006) (The [Hartman] Court offered two
main rationales for its holding: the issue of probable cause will likely be relevant in any retaliatory-
prosecution case and the requisite causation between the defendant's retaliatory animus and the
plaintiff's injury is usually more complex than it is in other retaliation cases. (citations omitted)
(internal quotation marks omitted)). Unfortunately, this bifurcation of Hartman has been ratified by
several other federal district courts. Baldauf II, 2007 WL 2156065 at *3 (In Barnes, the Sixth Circuit
noted that the Supreme Court offered two reasons for embracing a no-probable-cause requirement ....
[T]his court finds the Sixth Circuit's reasoning persuasive for several reasons.); Williams v. City of
Carl Junction, 480 F.3d 871, 876 (8th Cir. 2007) (We agree with the Sixth Circuit that the Supreme
Court's holding in Hartman is broad enough to apply even where intervening actions by a prosecutor
are not present, and we conclude that the Hartman rule applies in this [action for retaliatory cita-
tion].). But see Gullick, 517 F. Supp. 2d at 1072 (But Barnes is not persuasive because the court
stated only that the Hartman rule sweeps broadly without explaining why.).
[FN60]. Barnes, 449 F.3d at 720; see also Baldauf II, 2007 WL 2156065 at *3 (approving of the
Barnes analysis); Williams, 480 F.3d at 876 (same).
[FN61]. Hartman, 547 U.S. at 261 (emphasis added).
[FN62]. Baldauf II, 2007 WL 2156065 at *4.
[FN63]. Id.
[FN64]. Hartman, 547 U.S. at 264 (A prosecutor's disclosure of retaliatory thinking on his part, for
example, would be of great significance in addressing the presumption and closing the gap. So would
evidence that a prosecutor was nothing but a rubber stamp for his investigative staff or the police.).
[FN65]. Id.
[FN66]. Nearly any arrest can, with little effort, meet the relatively low standard that it be suppor-
ted by probable cause. Sadiq Reza, Privacy and the Criminal Arrestee or Suspect: In Search of a
Right, in Need of a Rule, 64 Md. L. Rev. 755, 796-97 (2005) (noting that the probable cause standard
is easy to satisfy while arguing that a requirement that the identity of an arrestee be protected until a
judge has determined that probable cause exists would protect important constitutional rights).
[FN67]. U.S. Const. amend. IV (The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause ....).
107 Mich. L. Rev. 111
[FN68]. The Fourth Amendment protects individuals from unreasonable searches and seizures, in-
cluding arrests, which are merely bodily seizures. Payton v. New York, 445 U.S. 573, 585 (1980)
(The simple language of the [Fourth] Amendment applies equally to seizures of persons and to
seizures of property.). Where probable cause to arrest exists, an officer is constitutionally em-
powered to make an arrest that is not otherwise illegal. See Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001) (There is no dispute that [defendant] had probable cause to believe that [plaintiff]
had committed a crime .... [Defendant] was accordingly authorized (not required, but authorized) to
make a custodial arrest without balancing costs and benefits or determining whether or not
[plaintiff's] arrest was in some sense necessary.). A Fourth Amendment challenge to an arrest asserts
that the arrest was unsupported by the constitutionally required probable cause, and is unconcerned
with retaliatory motive. E.g., Joseph v. Rowlen, 402 F.2d 367, 370 (7th Cir. 1968); see also Whren v.
United States, 517 U.S. 806, 813 (1996) (We think [our] cases foreclose any argument that the con-
stitutional reasonableness of traffic stops depends on the actual motivations of the individual officers
involved.... Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analys-
is.). A Fourth Amendment challenge thus cannot succeed where the arresting officer had probable
cause for effectuating the arrest. E.g., Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir.
1995) (There can be no federal civil rights claim for false arrest where the arresting officer had
probable cause.).
[FN69]. U.S. Const. amend. I.
[FN70]. See Perry v. Sindermann, 408 U.S. 593, 597 (1972) ([First Amendment retaliation] allow[s]
the government to produce a result which [it] could not command directly.) (third alteration in ori-
ginal) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).
[FN71]. E.g. Crawford-El v. Britton, 523 U.S. 574, 612 (1998) (Scalia, J., dissenting) (characterizing
retaliation actions as intent-based constitutional torts).
[FN72]. See cases cited supra note 7.
[FN73]. Perry, 408 U.S. at 597.
[FN74]. Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002); DeLoach v. Bevers, 922 F.2d 618, 620
(10th Cir. 1990); Losch v. Borough of Parkesburg, 736 F.2d 903, 907-08 (3d Cir. 1984); Buise v.
Hudkins, 584 F.2d 223, 230 (7th Cir. 1978) (citing and applying Perry in a First Amendment retali-
ation action).
[FN75]. Greene, 310 F.3d at 895 (second alteration in original) (quoting Bloch v. Ribar, 156 F.3d
673, 681-82 (6th Cir. 1998)).
[FN76]. Hartman v. Moore, 547 U.S. 250, 256 (2006) (Some official actions adverse to such a
speaker might well be unexceptionable if taken on other grounds, but when nonretaliatory grounds
are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to
recovery as the but-for cause of official action ....).
[FN77]. Greene, 310 F.3d at 895 ([H]owever, the existence of probable cause is not determinative of
the constitutional question if, as alleged here, the plaintiff was arrested in retaliation for his having
107 Mich. L. Rev. 111
engaged in constitutionally protected speech.); Gullick v. Ott, 517 F. Supp. 2d 1063, 1069 (W.D.
Wis. 2007). Because of the unique and awesome powers possessed by police officers, this rule might
have even more valuable in the arrest context than in other retaliation contexts. Id. ([T]he con-
sequences of [rejecting the doctrine] are troubling because it would permit unethical officers to target
their enemies or critics with a litany of citations for petty violations that would be ignored if commit-
ted by anyone else.).
[FN79]. Though there is no indication that police officers always or even often arrest individuals who
have given them probable cause to do so, one can assume that probable cause tends to support an of-
ficer's assertion that he arrested for constitutionally benign reasons. The Gullick court agreed with
this proposition:
This is not to say that the existence or absence of probable cause is an unimportant fact to
consider in an assessment [of] whether an arrest ... was conducted for retaliatory reasons.... [I]f an of-
ficer had probable cause for making an arrest, that tends to undermine an allegation that the arrest
was fabricated.
Gullick, 517 F. Supp. 2d at 1072.
[FN80]. Id. ([The presence of probable cause] does not change the ultimate question, which is
whether the defendant would have taken the same act in the absence of the plaintiff's protected con-
duct.).
[FN81]. 140 F.3d 1378, 1384 (11th Cir. 1998). Importantly, Redd is not an isolated incidence of judi-
cial folly, but is the seminal Eleventh Circuit no-probable-cause rule case and has been cited by sev-
eral courts for the proposition that the existence of probable cause precludes an action for retaliatory
arrest. Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002); Ybarra v. City of Miami, No.
02-20972-CIV, 2003 WL 25564426, at *19 (S.D. Fla. Aug. 12, 2003).
[FN82]. Redd, 140 F.3d at 1383-84. Granting qualified immunity is perhaps error on the court's
part. Since it held that no constitutional right was violated, the court did not actually grant qualified
immunity, a device used to protect state actors who through reasonable mistake violate protected
rights. This mistake is not uncommon, and the Supreme Court has been careful to remind lower
courts not to confuse the pleading requirements in a retaliation action with the separate (though
closely related) issue of qualified immunity. See Crawford-El v. Britton, 523 U.S. 574, 588-89 (1998)
.
[FN83]. 436 U.S. 547 (1978).
[FN84]. Zurcher, 436 U.S. at 550-51.
[FN85]. 42 U.S.C. 1983 (2000).
[FN86]. Zurcher, 436 U.S. at 552.
[FN87]. See generally 98 C.J.S. Witnesses 21 (2007). A subpoena duces tecum is a subpoena used
to procure the production of books and records. Id.
107 Mich. L. Rev. 111
[FN88]. Zurcher, 436 U.S. at 560.
[FN89]. See supra note 71 and accompanying text; see also Crawford-El v. Britton, 523 U.S. 574,
588 (1998) (It is equally clear that an essential element of some constitutional claims is a charge that
the defendant's conduct was improperly motivated.); Gullick v. Ott, 517 F. Supp. 2d 1063, 1069
(W.D. Wis. 2007) ([T]he [Seventh Circuit] court of appeals has made it clear that motive matters.).
[FN90]. 959 F.2d 1174 (2d Cir. 1992). In two separate opinions the Second Circuit relied on Mozzo-
chi in imposing some variation of the no-probable-cause rule in adjudicating retaliatory-arrest claims.
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); Singer v. Fulton County Sheriff, 63 F.3d
110, 120 (2d Cir. 1995).
[FN91]. Mozzochi, 959 F.2d at 1179-80.
[FN92]. See supra note 71 and accompanying text (discussing why motive matters).
[FN93]. Blue v. Koren, 72 F.3d 1075, 1083 n.5 (2d Cir. 1995). The court went on to suggest an al-
ternate, less troubling, justification for the troubling holding: a similarly troubling case stressed the
lack of particularized evidence of a retaliatory motive in finding that qualified immunity existed.
There was a similar lack of evidence in Mozzochi, where the arrest was in response to a threatening
communication. Id.
[FN94]. See supra Part II.
[FN95]. See supra Part I.
[FN96]. Some jurists assert that intent-based torts should not be actionable under the Civil Rights
Act. See supra notes 10-11 and accompanying text. This argument, though perhaps correct as a his-
torical matter or as a matter of statutory interpretation, raises issues outside the scope of this Note.
[FN98]. E.g., Baldauf v. Davidson (Baldauf II), No. 1:04-cv-1571-JDT-TAB, 2007 WL 2156065, at
*4 (S.D. Ind. July 24, 2007); see Hartman v. Moore, 547 U.S. 250, 259 (2006) (rejecting plaintiffs'
policy arguments).
[FN99]. This number was ascertained by performing the following search on Westlaw's CTA data-
base: retaliat! /s first amendment /s arrest. The search covered the twenty-five years from 1982
to 2007. As of October 10, 2007, a total of sixty-two cases appear, but in only twenty-nine were the
merits of a claim for retaliatory arrest actually at issue on appeal.
[FN100]. Hartman, 547 U.S. at 258-59 (Over the past 25 years fewer than two dozen damages ac-
tions for retaliatory prosecution ... have come squarely before the Federal Courts of Appeals....).
[FN101]. Id. at 258.
[FN102]. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); see id. at 597-602 (discussing why
courts are capable of managing the difficulties associated with intent-based constitutional torts). Two
107 Mich. L. Rev. 111
federal district courts recently proved capable of handling intent-based constitutional torts in the
manner the Supreme Court suggested. See Lyman v. City of Albany, No. 1:06-CV-1109 (LEK/DRH),
2008 WL 563378, at *2 (N.D.N.Y. March 3, 2008) (Plaintiff's claim of retaliation does not rise
above the purely speculative level required to survive Defendants' Motion to dismiss.); Eno Farms
Coop. Ass'n v. Corp. for Indep. Living, No. 3:06cv1983(AHN), 2007 WL 3308016, at *10 (D. Conn.
Nov. 5, 2007) ([B]ecause the causal link supporting [the] claim is not self-evident, [and] the
plaintiffs have an obligation [which they have not fulfilled] to amplify the claim with factual allega-
tions rendering it plausible... the first amended complaint fails to state a claim of First Amendment
retaliation.).
[FN103]. Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)). See generally Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) ( [G]overnment officials performing discretionary functions, generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.). It is important to note that
qualified immunity analysis presupposes that a constitutional violation has occurred. See Dahl v.
Holley, 312 F.3d 1228, 1233 (11th Cir. 2002) (In considering whether the officers are entitled to
qualified immunity on [plaintiff's] 1983 claims, we must first determine whether the facts ... estab-
lish a constitutional violation.); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (Before we can
consider whether [defendant] is entitled to qualified immunity ... we must first examine whether the
[plaintiffs] have properly alleged a cause of action.).
[FN104]. Smithson, 235 F.3d at 1061 (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curi-
am)) (internal quotation marks omitted).
[FN105]. Hunter, 502 U.S. at 227 (alteration in original) (quoting Mitchell v. Forsyth, 472, U.S. 511,
526 (1985)); see also id. ([W]e repeatedly have stressed the importance of resolving immunity ques-
tions at the earliest possible stage in litigation.); Harlow, 457 U.S. at 818 (On summary judgment,
the judge appropriately may determine, not only the currently applicable law, but whether that law
was clearly established at the time an action occurred.... Until this threshold immunity question is re-
solved, discovery should not be allowed. (footnote omitted)).
[FN106]. A Fourth Amendment challenge to an arrest is one such action that is defeated by the pres-
ence of probable cause. See supra note 68.
[FN107]. Baldauf v. Davidson, No. 1:04-cv-1571-JDT-TAB, 2007 WL 2156065, at *4 (S.D. Ind. July
24, 2007); see also Crawford-El, 523 U.S. at 604-05 (Rehnquist, C.J., dissenting). Rehnquist argued:
Such a rule would also allow plaintiffs to strip defendants of [qualified immunity] protec-
tions by a simple act of pleading--any minimally competent attorney (or pro se litigant) can convert
any adverse decision into a motive-based tort, and thereby subject government officials to some
measure of intrusion into their subjective worlds.
Id. at 605.
[FN108]. Some arrests, for instance, implicate only the individual's interest in being free from unreas-
onable search and seizure. See supra note 68.
107 Mich. L. Rev. 111
[FN110]. Crawford-El, 523 U.S. at 592; see supra note 6 and accompanying text.
[FN111]. Ideally, disciplinary consequences, such as sanctions available under Rule 11 of the Federal
Rules of Civil Procedure would sufficiently deter the filing of spurious claims. Fed. R. Civ. P. 11; see
also CTC Imps. & Exps. v. Nigerian Petroleum Corp., 739 F. Supp. 966, 969 (E.D. Pa. 1990) (The
purpose of Rule 11 ... is to discourage pleadings which are frivolous, legally unreasonable, or without
factual foundation.).
[FN112]. Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Dickerson v. McClellan, 101
F.3d 1151, 1158 (6th Cir. 1996).
[FN113]. See City of Houston v. Hill, 482 U.S. 451, 462-63 (1987) (The freedom of individuals
verbally to oppose or challenge police action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.); McCurdy v. Montgomery
County, 240 F.3d 512, 520 (6th Cir. 2001) (Since the day the ink dried on the Bill of Rights, [t]he
right of an American citizen to criticize public officials and policies ... is the central meaning of the
First Amendment. (alterations in original) (quoting Glasson v. City of Louisville, 518 F.2d 899,
904) (1975) (internal quotation marks omitted)); cf. Franklin D. Roosevelt, Annual Message to Con-
gress (January 6, 1941), in The Yale Book of Quotations 646, 646 (Fred R. Shapiro ed., 2006) (In
the future days, which we seek to make secure, we look forward to a world founded upon four essen-
tial human freedoms. The first is freedom of speech and expression--everywhere in the world.).
107 Mich. L. Rev. 111
END OF DOCUMENT
107 Mich. L. Rev. 111
Police Misconduct: Law and Litigation
Database updated October 2011
Michael Avery, David Rudovsky, Karen Blum
Chapter
2. Actionable Conduct Under the Federal Civil Rights Acts
References
2:28. Denial of First Amendment rights
West's Key Number Digest
West's Key Number Digest, Civil Rights 1088(1)
Treatises and Practice Aids
Civil Actions Against State and Local Government 7:74, 7:75 (2d ed.)
Actions by the police which interfere with the free exercise of speech, press, and associ-
ation or which interfere with religious liberties guaranteed by the First Amendment, are sub-
ject to suit under 1983.[1]
Law enforcement activities designed to retaliate against persons for criticizing government
officials, or filing lawsuits against them, violate the First Amendment. This is true whether the
action is an immediate arrest,[2] a later prosecution,[3] or other adverse action.[4] In City of
Houston v. Hill,[5] the Court held unconstitutional a statute which made it an offense to "in
any manner oppose, molest, abuse or interrupt" a police officer in the execution of his duty.[6]
To establish a First Amendment violation, a plaintiff must show that he was engaged in
protected speech, that the defendant's retaliatory conduct adversely affected protected speech
and that there was a causal connection between the retaliatory actions and the adverse effect
on speech. The Courts of Appeals have applied an objective test to determine whether speech
was adversely affected. As the Eleventh Circuit recently stated in Bennett v. Hendrix,[7] "A
plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely de-
ter a person of ordinary firmness from the exercise of First Amendment rights."
In Glasson v. City of Louisville,[8] the court analyzed a typical police violation of First
Amendment rightsthe arrest of a protestor:
In this case, Miss Glasson was in a place where she had a right to be, at a time that was ap-
propriate, and was conducting herself peacefully and lawfully. She, like many other per-
sons, had taken the opportunity to express her ideas to the Presidentfrom a place desig-
nated by the state for onlookers and in a manner often used by persons who do not have
POLICEMISC 2:28 Page 1
Police Misconduct: Law and Litigation 2:28
access to the print or broadcast media.
To permit police officers to prohibit the expression of ideas which they believe to be "detri-
mental" or "injurious" to the President of the United States or to punish for incitement or
breach of the peace the peaceful communication of such messages because other persons
are provoked and seek to take violent action against the speaker would subvert the First
Amendment, and would incorporate into that constitutional guarantee a "heckler's veto"
which would empower an audience to cut off the expression of a speaker with whom it
disagreed. The state may not rely on community hostility and threats of violence to justify
censorship.
Liability has been imposed in similar cases.[9] Where police interfere with speech activit-
ies on public property, it may be necessary to determine whether the location involved was a
public forum, whether the government is imposing a reasonable time, place and manner re-
striction on speech, and whether ample alternative channels of communication have been left
open.[10]
In Dellums v. Powell,[11] the court emphasized the significance of First Amendment
rights in holding that a cause of action against federal officers existed directly under the Con-
stitution for damages for violation of these rights:
Basically, what is at stake here is loss of an opportunity to express to Congress one's dis-
satisfaction with the laws and policies of the United States. Staged demonstrations, cap-
able of attracting national or regional attention in the press and broadcast mediaare for
better or worse a major vehicle by which those who wish to express dissent can create a
forum in which their views may be brought to the attention of a mass audience and, in
turn, to the attention of a national legislature. It is facile to suggest that no damage is done
when a demonstration is broken up by unlawful arrests simply because one could write an
individual letter to a congressman or because the demonstration might be held at another
day or time. Few letters to congressmen command a national or regional audience. And of-
ten it is the staging and theatricsif you will, the time, place, and manner of the demon-
strationwhich express the passion and emotion with which a point of view is held. The
demonstration, the picket line, and the myriad other forms of protest which abound in our
society each offer peculiarly important opportunities in which speakers may at once per-
suade, accuse, and seek sympathy or political support, all in a manner likely to be noticed.
Governmental surveillance of political groups and organizations presents distinct police
misconduct issues under the First Amendment. In the wake of disclosures of FBI surveillance,
harassment and attempted destruction of political organizations and political activists, numer-
ous suits challenged governmental surveillance on a national and local level.[12] Mere sur-
veillance of public political activity by nonintrusive means and the cataloguing of the inform-
ation obtained may not state a cause of action, Laird v. Tatum, supra,[13] but where the police
use illegal surveillance or disruption techniques, e.g., wiretapping without court order, theft of
documents, acts of provocation by agents, etc., the First and Fourth Amendments are implic-
ated.[14] In Angola v. Civiletti,[15] for example, the court sustained a complaint alleginga
First Amendment violation where the plaintiff was harassed and coerced by FBI agents with
the intent to force her to cooperate with a federal investigation. Moreover, the police cannot
disseminate the information obtained by surveillance beyond other government officials with
a need to know, particularly where such dissemination is for the purpose of deterring or pre-
venting one's exercise of constitutional rights.[16]
A somewhat different First Amendment claim is presented by allegations that the police
have interfered with plaintiff's access to court. Filing lawsuits is a method of petitioning the
government for redress of grievances and is protected by the First Amendment.[17] When
public officials conceal facts about misconduct it may render hollow the right to seek redress,
and such interference with the right of access to the courts may be actionable.[18] In Chris-
topher v. Harbury,[19] the Supreme Court held that to state a claim for access to courts based
on an underlying cause of action that was lost or compromised as a result of government mis-
conduct, the plaintiff must meet two requirements. First, the underlying cause of action must
be described precisely enough that the court can determine whether it is "nonfrivolous."
Second, the plaintiff must identify a remedy that may be awarded as recompense for the lost
claim that is not otherwise available in some suit that may yet be brought.[20] The Court
noted that in cases where the underlying claim had been tried or settled for an inadequate
amount, given official deception, the plaintiff would be making a claim for relief on the access
claim that she could not otherwise obtain and would have a legitimate cause of action.[21]
The Court also noted, apparently with approval, that the D.C. Circuit below, contrary to other
circuits, had not imposed a requirement that the plaintiff actually have filed the underlying
claim, reasoning that this "would foreclose access claims in the most heinous cases where a
cover-up was so pervasive that any timely attempt to litigate would have seemed futile."[22]
Prior to Harbury, a number of courts had held that there was no cause of action where the
plaintiff could not demonstrate that he had lost the opportunity to file the underlying suit.[23]
Recent cases have considered whether civilians have a First Amendment right to videotape
and/or audiotape, overtly or surreptitiously, the actions of police officers.[24] Given the ubi-
quity of recording devices, this is an area where one may expect continued development of the
law.
[FN1] See, e.g., Hague v. Committee for Indus. Organization, 307 U.S. 496, 59 S. Ct.
954, 83 L. Ed. 1423, 4 L.R.R.M. (BNA) 501, 1 Lab. Cas. (CCH) P 17048 (1939)
(injunctive relief); Amnesty Intern., USA v. Battle, 559 F.3d 1170 (11th Cir. 2009)
(plaintiffs' First Amendment rights were violated where police created a cordon around
their demonstration and did not allow others, including media, access to it, and preven-
ted Amnesty demonstrators from leaving area to pass out literature); Fogel v. Collins,
531 F.3d 824 (9th Cir. 2008) (plaintiff was arrested based on statements written on his
van, including I AM A FUCKING SUICIDE BOMBER COMMUNIST TERROR-
IST; court holds statements were political hyperbole and not threats, arrest violated
plaintiff's First Amendment rights, but officers were protected by qualified immunity
because previous case law would not have put them on notice that this language was
protected by First Amendment); Purtell v. Mason, 527 F.3d 615 (7th Cir. 2008), cert.
denied, 129 S. Ct. 411, 172 L. Ed. 2d 288 (2008) (resident placed tombstones on his
front yard insulting neighbors by name and referring to their fictional deaths; officer
who ordered resident to remove them upon pain of arrest violated First Amendment
because tombstones did not amount to fighting words because they merely inflicted
emotional injury but did not provoke an immediate breach of peace; but officer was
entitled to qualified immunity because he could reasonably have been mistaken about
post-Chaplinsky developments in the law); York v. City of Las Cruces, 523 F.3d 1205
(10th Cir. 2008) (law was clearly established that loudly saying bitch in parking lot,
where comment was not directed to anyone in particular and plaintiff was several park-
ing spaces away from driver to whom the word made reference, did not constitute dis-
orderly conduct); Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) (detaining, interrog-
ating, fingerprinting, photographing and searching Muslim U.S. citizens upon return
from Islamic conference in Canada placed a burden on associational rights sufficient to
implicate First Amendment protections, where others who had not attended conference
were not subject to such measures, even though some Muslims expressed a willingness
to attend future conference, but means adopted constituted least restrictive means to
achieve government's compelling interest in protecting nation from terrorism where
government had information that individuals associated with terrorism would be at
conference, even though it had no individualized suspicion that plaintiffs were engaged
in terrorist activity); Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. 2007)
(affirming injunction against non-profit corporation deemed to be state actor in action
based on acts by city police who prevented plaintiffs from distributing anti-war flyers
at air show); Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807
(6th Cir. 2007), cert. dismissed, 129 S. Ct. 31, 171 L. Ed. 2d 935 (2008) (detention of
anti-abortion protestors for driving billboard trucks with graphic abortion images
would violate their First Amendment rights); Jones v. Parmley, 465 F.3d 46, 58 (2d
Cir. 2006) (rejecting officers' claim of qualified immunity on protestors' First Amend-
ment claims based on police dispersal of demonstrators; Neither energetic, even rauc-
ous, protesters who annoy or anger audiences, nor demonstrations that slow traffic or
inconvenience pedestrians, justify police stopping or interrupting a public protest.);
Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004) (mass suspicionless, warrantless
metal detector search of protestors before they entered demonstration site would viol-
ate their First and Fourth Amendment rights; injunction issued); Cooper v. Dillon, 403
F.3d 1208, 33 Media L. Rep. (BNA) 1577 (11th Cir. 2005) (holding statute unconstitu-
tional that criminalized publication of information regarding internal affairs investiga-
tion).
[FN2] Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 216 (6th Cir. 2011) (no prob-
able cause for retaliatory prosecution of plaintiff who called officer a son of a bitch
and a fat slob; because the First Amendment requires that police officers tolerate
coarse criticism, the Constitution prohibits states from criminalizing conduct that dis-
turbs solely police officers); Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008)
(Trained officers must exercise restraint when confronted with a citizen's anger over
police action.; however, probable cause is an objective standard and if there was prob-
able cause for plaintiff's arrest, any argument that her speech was the motivation for
her arrest must fail.); King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (in questionable
opinion and over thoughtful dissent, court concludes officer did not violate First
Amendment rights of plaintiff arrested for obstructing officer in performance of his
duty, based on plaintiff's repeated statements to third party being questioned by officer
that he did not have to speak to officer); Skop v. City of Atlanta, GA, 485 F.3d 1130
(11th Cir. 2007) (officer had no probable cause, or even arguable probable cause, for
arresting woman on charge of obstructing police officer in lawful performance of his
duties, where she merely asked him to move his cruiser so she could enter her drive-
way); Leonard v. Robinson, 477 F.3d 347, 2007 FED App. 0051P (6th Cir. 2007)
(plaintiff set forth prima facie case of retaliatory arrest based on claim he was arrested
for saying God damn at a public meeting); Davis v. Williams, 451 F.3d 759, 767
(11th Cir. 2006) (Neither an owner's simple inquiry as to why officers are present on
his property nor a person's attempt to bring a dangerous situation to the officer's atten-
tion can be construed as obstruction of justice or disorderly conduct. Nor can a citizen
be precluded by the threat of arrest from asking to speak to an officer's superior or
from asking for an officer's badge number. Those inquiries likewise do not constitute
obstruction of justice or disorderly conduct.); Johnson v. Campbell, 332 F.3d 199 (3d
Cir. 2003) (fact that subject of Terry stop muttered "son of a bitch" during the en-
counter did not give officer probable cause to arrest him for disorderly conduct);
Greene v. Barber, 310 F.3d 889, 2002 FED App. 0389P (6th Cir. 2002) (although there
may have been probable cause to arrest plaintiff for causing a disturbance, it would vi-
olate clearly established law for officer to arrest him in retaliation for plaintiff calling
officer an "asshole" and "stupid"); McCurdy v. Montgomery County, Ohio, 240 F.3d
512, 2001 FED App. 0044P (6th Cir. 2001) (arrestee had clearly established right to
verbally challenge officer's surveillance of him as he conversed with friends in car in
residential neighborhood at 5 a.m.); Posr v. Court Officer Shield No. 207, 180 F.3d
409 (2d Cir. 1999) (plaintiff's remark to officer, "one day you're gonna get yours," was
protected by First Amendment; court notes that "'fighting words' doctrine is probably
'narrower [in] application in cases involving words addressed to a police officer, be-
cause a properly trained officer may reasonably be expected to exercise a higher de-
gree of restraint than the average citizen,'" citing City of Houston, Tex. v. Hill, 482
U.S. 451, 462, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987)); Gulliford v. Pierce County,
136 F.3d 1345, 40 Fed. R. Serv. 3d 255 (9th Cir. 1998) (plaintiff entitled to new trial
where jury instruction did not make clear that crime of obstructing public servant re-
quires more than verbal protest against police action); Spiller v. City of Texas City,
Police Dept., 130 F.3d 162 (5th Cir. 1997) (officer not entitled to qualified immunity
for arrest of motorist who told him to "move his damn truck"); Knox v. Southwest Air-
lines, 124 F.3d 1103, 38 Fed. R. Serv. 3d 344 (9th Cir. 1997) (plaintiff entitled to trial
on claim he was arrested in retaliation for demand that police identify themselves);
Sandul v. Larion, 119 F.3d 1250, 1997 FED App. 0222P (6th Cir. 1997) (rejected on
other grounds by, Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 46 Fed. R. Serv. 3d 900
(1st Cir. 2000)) (person passing in truck who shouted "f you" to abortion protesters
was engaged in protected speech, not within "fighting words" exception); Mackinney
v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995) (arrestee was entitled to protest officer's
command that he stop writing on sidewalk with chalk, court recognizes clearly estab-
lished "right verbally to challenge the police"); Buffkins v. City of Omaha, Douglas
County, Neb., 922 F.2d 465 (8th Cir. 1990) (plaintiff called officer "an asshole" after
he detained her and searched her belongings as a drug suspect, court holds arrest illeg-
al as a matter of law).
[FN3] Where plaintiff alleges that he was prosecuted in retaliation for First Amend-
ment activities, he must plead and prove an absence of probable cause for the prosecu-
tion as an element of the retaliation claim. Hartman v. Moore, 547 U.S. 250, 126 S. Ct.
1695, 164 L. Ed. 2d 441 (2006). See 2:16. Beck v. City of Upland, 527 F.3d 853, 862
(9th Cir. 2008) (with respect to First Amendment retaliatory prosecution claims, previ-
ous cases describing factors that could rebut presumption of independent judgment by
prosecutor are overruled in light of Hartman, plaintiff need only show retaliatory
motive on part of official urging prosecution and absence of probable cause to rebut
presumption of regularity and overcome defense of independent intervening cause;
with respect to Fourth Amendment claims, court notes that Hartman may be inconsist-
ent with previous law but does not overrule the latter in this case because plaintiff
overcame presumption of independent judgment by prosecutor under previous case
law); Harris v. Bornhorst, 513 F.3d 503, 519 (6th Cir. 2008), cert. denied, 128 S. Ct.
2938, 171 L. Ed. 2d 865 (2008) (court reverses dismissal of claim that prosecutor, al-
legedly in retaliation for civil suit filed against her by plaintiff, told Marine Corps she
still suspected juvenile plaintiff of murder and there were no other suspects, despite re-
versal of plaintiff's conviction on grounds that confession was involuntary; court finds
that plaintiff's filing and maintenance of suit did not undermine First Amendment
claim, First, the issue is whether a person of ordinary firmness would be deterred, not
whether [the plaintiff] himself actually was deterred Second, if subsequently chal-
lenging [the state action] ipso facto demonstrated that the challenged action was not
sufficiently adverse to undermine constitutional rights, no case alleging retaliation for
exercising First Amendment rights could ever be brought.); Becker v. Kroll, 494 F.3d
904, 926 (10th Cir. 2007) (recognizing cause of action for retaliatory prosecution
against official who influences bringing of prosecution by withholding exculpatory
evidence from prosecutor in retaliation for plaintiff's exercise of First Amendment
rights); Poole v. County of Otero, 271 F.3d 955 (10th Cir. 2001) (abrogated on other
grounds by, Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441
(2006)) (officers added more serious criminal charges after receiving letter from
plaintiff's attorney requesting them to preserve evidence of plaintiff's motorcycle acci-
dent following high speed chase by officers).
[FN4] Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009) (prisoner had valid claim for
harassment in retaliation for filing affidavit to support wrongful death action by de-
ceased inmate's mother; prisoner's speech can be protected even where it does not in-
volve matter of public concern); Meyer v. Board of County Com'rs of Harper County,
Okla., 482 F.3d 1232 (10th Cir. 2007) (plaintiff properly alleged retaliation where she
claimed deputies lied about whether she was violent in order to have her committed to
mental hospital to discourage her from filing criminal complaint against her former
boyfriend, activity protected by First Amendment); Skoog v. County of Clackamas,
469 F.3d 1221 (9th Cir. 2006) (search in retaliation for First Amendment activity viol-
ated plaintiff's constitutional rights despite probable cause for the search, but officers
entitled to qualified immunity because right was not clearly established); Bennett v.
Hendrix, 423 F.3d 1247 (11th Cir. 2005) (officers were not entitled to qualified im-
munity for First Amendment violation where they took down license numbers of cars
at forum in support of referendum that would have diminished sheriff's powers, and in
retaliation for their support of referendum, surveilled plaintiffs' homes and businesses,
set up roadblocks near their homes, stopped their cars without reason and issued false
traffic citations, accessed government databases to obtain confidential information on
plaintiffs, attempted to obtain a warrant for their arrest on trumped-up environmental
charges, and mailed flyers to 35,000 homes in Forsyth County calling the plaintiffs the
"real criminals," members of a "chain gang," and "the same type of criminals that ter-
rorize Forsyth County"); Rossignol v. Voorhaar, 316 F.3d 516, 31 Media L. Rep.
(BNA) 1417 (4th Cir. 2003) (off-duty and plain clothes officers violated plaintiff's
rights when they bought out the stock of his newspaper, which contained articles critic-
al of sheriff and other officials, at vending locations throughout county the day before
the election); Blackburn v. City of Marshall, 42 F.3d 925, 10 I.E.R. Cas. (BNA) 385
(5th Cir. 1995) (owner of towing service stated First Amendment cause of action for
retaliatory denial of right to use police radio frequency after complaining to chief of
police regarding bidding procedures); Freeman v. Blair, 862 F.2d 1330 (8th Cir. 1988)
(revocation of campground's license in retaliation for complaints about illegal
searches). But see Zherka v. Amicone, 634 F.3d 642, 39 Media L. Rep. (BNA) 1716
(2d Cir. 2011) (claim of defamation per se under New York law, without showing ac-
tual damage to business or reputation, was insufficient basis for First Amendment re-
taliation claim which requires proof of actual harm or chilling of speech).
[FN5] City of Houston, Tex. v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398
(1987).
[FN6] See McDermott v. Royal, 613 F.3d 1192 (8th Cir. 2010) (Springfield, Mo. or-
dinance prohibiting obstruction held constitutional because interpreted to cover only
physical acts and fighting words), and cases cited therein. See also Chaker v. Crogan,
428 F.3d 1215, 33 Media L. Rep. (BNA) 2569 (9th Cir. 2005) (state statute criminaliz-
ing filing of knowingly false complaint of police misconduct, but not false statements
in support of police, violated First Amendment ban against viewpoint discrimination).
[FN7] Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (surveying cases from
all circuits to find that objective test is the norm). A small minority of opinions appear
to require an actual chill. See, e.g., Curley v. Village of Suffern, 268 F.3d 65, 73 (2d
Cir. 2001).
[FN8] Glasson v. City of Louisville, 518 F.2d 899, 90506 (6th Cir. 1975).
[FN9] Vodak v. City of Chicago, 639 F.3d 738, 745-746 (7th Cir. 2011) (before the
police could start arresting peaceable demonstrators for defying their orders they had
to communicate the orders to the demonstratorspolice must give notice of revocation
of permission to demonstrate before they can begin arresting demonstrators); Bari-
beau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (violated Fourth Amend-
ment to arrest protestors against mindless consumerism in zombie costumes for dis-
orderly conduct under statute that was facially overbroad unless narrowed to proscribe
only "fighting words" in order to protect expressive conduct); Keating v. City of
Miami, 598 F.3d 753, 765 (11th Cir. 2010) (supervisors violated protestors' clearly es-
tablished First Amendment rights by directing subordinate officers to use less than leg-
al weapons to disperse crowd of peaceful demonstrators and by failing to stop subor-
dinate officers from doing so); Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir.
2008) (court holds, inter alia, where police closed streets to traffic there was no prob-
able cause to arrest protestors for parading without a permit; brief chanting of non-
abusive, non-profane slogan does not amount to disorderly conduct; shouting shame
at officers does not constitute abuse of, or resisting, officers); Fogarty v. Gallegos, 523
F.3d 1147 (10th Cir. 2008) (taking facts in light most favorable to plaintiff, including
evidence that protestors were peaceful and witness who stated it was police response
not drumming that was inciting the crowd, police did not have probable cause to arrest
him for disorderly conduct for drumming during anti-war protest; law requires prob-
able cause that plaintiff in particular violated the law, not merely that he was a parti-
cipant in an antiwar protest where some individuals may have broken the law); Lytle
v. Doyle, 326 F.3d 463 (4th Cir. 2003) (statute prohibiting loitering on bridges was un-
constitutionally vague as applied to protestors, because not clear that loitering would
include protesting); Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996) (defendants not
entitled to qualified immunity for banning all public demonstrations the day following
violence in the wake of a verdict in a highly publicized criminal trial; mayor not en-
titled to qualified immunity for holding protesters in jail for 55 hours to prevent them
from engaging in further protests); Johnson v. Bax, 63 F.3d 154 (2d Cir. 1995)
(protestor carrying sign addressed to President Clinton stated cause of action when he
was arrested for refusing to move to "anti-Clinton" area designated by police, as op-
posed to "pro-Clinton" location); Cannon v. City and County of Denver, 998 F.2d 867
(10th Cir. 1993) (officer was not entitled to qualified immunity for arresting protester
carrying sign labeling abortion clinic as "the killing place," officer could not reason-
ably have concluded the sign constituted "fighting words"). But see Grider v. Ab-
ramson, 180 F.3d 739, 1999 FED App. 0223P (6th Cir. 1999) (upholding security
measures which restricted speech at Ku Klux Klan rally and counter-rally by Klan op-
ponents); Ryan v. County of DuPage, 45 F.3d 1090 (7th Cir. 1995) (plaintiff stated no
First Amendment claim based on arrest for violating valid rule against wearing a mask
in a courthouse).
[FN10] See Zalaski v. City of Bridgeport Police Dept., 613 F.3d 336 (2d Cir. 2010)
(remanding for more detailed analysis of public forum issues); Ovadal v. City of
Madison, Wis., 469 F.3d 625 (7th Cir. 2006) (decision to remove protestors from high-
way overpass was not caused by content of their message); Faustin v. City and County
of Denver, Colo., 423 F.3d 1192 (10th Cir. 2005) (sustaining against overbreadth and
vagueness challenge a policy prohibiting all expressive conduct on highway overpasses
that was visible to traffic below and potentially disruptive to that traffic on the under-
pass); Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212 (10th
Cir. 2007) (holding that city's security plan was content neutral time, place and manner
restriction on speech, plan was narrowly tailored and alternate channel of communica-
tion existed); A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006)
(finding solicitation ordinance to be content-based and not narrowly tailored, holding
that erection of tables in public forum was protected by First Amendment and tabling
ordinance violated Equal Protection Clause); Klein v. San Diego County, 463 F.3d
1029 (9th Cir. 2006) (upholding residential picketing ordinance as valid time, place
and manner restriction on speech, rejecting claims it was unconstitutionally overbroad
and vague); Gathright v. City of Portland, Or., 439 F.3d 573 (9th Cir. 2006) (city
policy, expressed in ordinance, was unconstitutional where it enforced demands of per-
mittees to eject from otherwise public events others with whose messages permittees
disagreed; policy did not constitute a valid time, place or manner restriction on speech;
case was distinguished from Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995), because
policy was not narrowly tailored to protect integrity of permittees' message and thus
their free speech rightspersons protesting permittees' message could not be mistaken
as part of the permittees' message); Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir.
2005) (emergency order prohibiting access to downtown area during international trade
conference was facially valid time, place and manner restriction on speech, but materi-
al issue of fact precluded summary judgment on question of whether police implemen-
ted order in unconstitutional manner by excluding only anti-WTO protestors from the
area); Brown v. California Dept. of Transp., 321 F.3d 1217 (9th Cir. 2003) (highway
overpass fence was a designated public forum; plaintiffs entitled to preliminary injunc-
tion against regulation requiring permits for expressive signs or banners other than
American flag); Brister v. Faulkner, 214 F.3d 675, 145 Ed. Law Rep. 154, 28 Media L.
Rep. (BNA) 1912 (5th Cir. 2000) (university property adjacent to and indistinguishable
from public sidewalk was a public forum; if protestors interfered with entry to build-
ing, reasonable time, place and manner restrictions were appropriate).
[FN11] Dellums v. Powell, 566 F.2d 167, 195, 24 Fed. R. Serv. 2d 20 (D.C. Cir. 1977).
[FN12] See, e.g., Socialist Workers Party v. Attorney General of U. S., 419 U.S. 1314,
95 S. Ct. 425, 42 L. Ed. 2d 627 (1974); Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33
L. Ed. 2d 154 (1972); Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984);
Paton v. La Prade, 524 F.2d 862, 21 Fed. R. Serv. 2d 359 (3d Cir. 1975); Philadelphia
Yearly Meeting of Religious Soc. of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975);
Fifth Ave. Peace Parade Committee v. Gray, 480 F.2d 326 (2d Cir. 1973); Alliance to
End Repression v. Rochford, 407 F. Supp. 115 (N.D. Ill. 1975); Alliance to End Re-
pression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) (efforts to enjoin portion of
new FBI guidelines pursuant to consent decree unsuccessful); Alliance to End Repres-
sion v. City of Chicago, 627 F. Supp. 1044 (N.D. Ill. 1985) (damages awarded to
plaintiffs as compensation for chill of First Amendment rights); Berlin Democratic
Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976); Handschu v. Special Services Di-
vision, 349 F. Supp. 766 (S.D. N.Y. 1972); Donner, The Age of Surveillance (1980).
See 15:4.
[FN13] In Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 11 Ed. Law Rep. 141
(6th Cir. 1983), the court held that placing an undercover narcotics agent in high
school classrooms did not violate the First Amendment rights of teachers and students,
even though the classes were chosen because of the subject matter and the liberal repu-
tations of the teachers.
[FN14] See, e.g., Riggs v. City of Albuquerque, 916 F.2d 582 (10th Cir. 1990); Ghandi
v. Police Dept. of City of Detroit, 747 F.2d 338, 40 Fed. R. Serv. 2d 363 (6th Cir.
1984); Handschu v. Special Services Division, 349 F. Supp. 766 (S.D. N.Y. 1972); Al-
liance to End Repression v. Rochford, 407 F. Supp. 115 (N.D. Ill. 1975).
[FN15] Angola v. Civiletti, 666 F.2d 1 (2d Cir. 1981).
[FN16] See Philadelphia Yearly Meeting of Religious Soc. of Friends v. Tate, 519
F.2d 1335 (3d Cir. 1975).
[FN17] Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741, 103 S. Ct.
2161, 76 L. Ed. 2d 277, 113 L.R.R.M. (BNA) 2647, 97 Lab. Cas. (CCH) P 10130
(1983). With respect to the rights of prisoners to institutional conditions which permit
them meaningful access to courts, see Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174,
135 L. Ed. 2d 606 (1996).
[FN18] Bell v. City of Milwaukee, 746 F.2d 1205, 1261, 16 Fed. R. Evid. Serv. 279
(7th Cir. 1984) (overruled on other grounds by, Russ v. Watts, 414 F.3d 783 (7th Cir.
2005)); Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983). See cases cited on conspir-
acies to engage in cover-ups in 2:38.
[FN19] Christopher v. Harbury, 536 U.S. 403, 122 S. Ct. 2179, 153 L. Ed. 2d 413
(2002) (reviewing claim that government officials had lied to plaintiff about their
knowledge of her husband's whereabouts and condition, while he was being tortured
and finally murdered by Guatemalan military officers allegedly paid by the C.I.A.).
[FN20] The Court held that the plaintiff had failed to meet these requirements in Har-
bury. The underlying action would have been a suit for intentional infliction of emo-
tional distress with a request for injunctive relief, namely securing the release of the
plaintiff's husband. Because he had been murdered, the injunctive relief was no long
feasible and the damages were still available in other claims the plaintiff was making.
[FN21] Harbury, 122 S. Ct. at 2190, n. 22.
[FN22] Harbury, 122 S. Ct. at 2187, n. 14.
[FN23] See Ali v. District of Columbia, 278 F.3d 1 (D.C. Cir. 2002) (plaintiff must
show that claim has been lost or rejected or is currently being prevented); Delew v.
Wagner, 143 F.3d 1219 (9th Cir. 1998) (where it could not yet be determined whether
police cover-up of driver's intoxication rendered accident victim's court remedies inef-
fective, federal action should be dismissed without prejudice); Swekel v. City of River
Rouge, 119 F.3d 1259, 1997 FED App. 0223P (6th Cir. 1997) (plaintiff's failure to
make attempt to gain access to courts was fatal to claim that police had covered up
identity of driver in accident); Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995)
(where facts were disclosed within six months, plaintiffs did not suffer a constitutional
injury from attempted cover-up); Foster v. City of Lake Jackson, 28 F.3d 425 (5th Cir.
1994) (officials alleged to have concealed facts during discovery protected by qualified
immunity; clearly established right as of 19851988 limited to right to file suit, not to
proceed free of discovery abuses).
[FN24] See Kreimer, Pervasive Image Capture and the First Amendment: Memory,
Discourse, and the Right to Record, 159 U. Pa L. Rev. 335 (2011); Kelly v. Borough of
Carlisle, 622 F.3d 248, 38 Media L. Rep. (BNA) 2473 (3d Cir. 2010) (concluding there
is insufficient case law establishing a right to videotape police officers during a traffic
stop to put a reasonably competent officer on 'fair notice' that seizing a camera or ar-
resting an individual for videotaping police during the stop would violate the First
Amendment); Smith v. City of Cumming, 212 F.3d 1332, 1333, 28 Media L. Rep.
(BNA) 1959 (11th Cir. 2000) (recognizing a First Amendment right, subject to reason-
able time, manner and place restrictions, to photograph or videotape police conduct).
Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
POLICEMISC 2:28
END OF DOCUMENT
Chapter
3. Absolute and Qualified Immunity Defenses
References
3:16. Application of the doctrine to specific constitutional claimsFirst Amendment
claims
Civil Actions Against State and Local Government 11:37, 11:45 (2d ed.)
Yagman, Police Misconduct and Civil Rights: Federal Jury Practice and Instructions
10-22 (2d ed.)
Steinglass, Section 1983 Litigation in State Courts 15:7 to 15:11
Bodensteiner and Levinson, State and Local Government Civil Rights Liability 1A:10
Trial Strategy
Proof of Qualified Immunity Defense in 42 U.S.C.A. 1983 or Bivens Actions Against
Law Enforcement Officers, 59 Am. Jur. Proof of Facts 3d 291
Law Reviews and Other Periodicals
Blum, Section 1983: Qualified Immunity, 785 Practising Law Institute Litigation and Ad-
ministrative Practice Course Handbook Series 9 (October, 2008)
Cases decided under the First Amendment have produced a wide divergence of opinion on
the appropriate standard for reviewing immunity claims. The courts have categorically rejec-
ted qualified immunity where the defendants violated First Amendment rights and attempted
to argue that the manner in which the rights were violated (i.e., their specific conduct) had not
previously been clearly proscribed.[1]
However, in cases where the defendants are charged with balancing competing interests
under the applicable constitutional standard, some courts have provided immunity.[2] Thus, in
cases concerning an official's right to discharge or discipline employees for speech on a matter
of public concern, the First Amendment balances the employee's right to free speech against
the government's right to an efficient and productive workplace.[3] Recently, however, the
Supreme Court has rendered a decision that portends a significant restriction on the protected
speech of public employees. In Garcetti v. Ceballos, [4] a District Attorney allegedly retali-
ated against a prosecutor for a memo the prosecutor wrote in the course of his job, raising
concerns about the possibility that a deputy sheriff lied in an affidavit used to secure a search
warrant in a pending criminal case. In a split decision, the Court held "that when public em-
ployees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their commu-
nications from employer discipline."[5] Neither the fact that he expressed his views "inside
the office," rather than publicly, nor the fact that the subject matter of the memo was work-
related, was dispositive. The controlling factor, according to the Court, was that the memo
was written in the course of his official duties. [6]
In a number of cases, defendants have prevailed on the claim that they acted "reasonably"
in taking action against the employee, even though the court ultimately decided that a First
Amendment violation had occurred.[7] In Melton v. Oklahoma City,[8] the court rejected this
standard and upheld a verdict for a police officer who was dismissed for testifying for a crim-
inal defendant.[9]
Other courts have recognized that retaliatory discipline or discharges are clearly estab-
lished constitutional violations, and that since these cases present factual questions concerning
the reasons for the discharge, they are often not susceptible to pretrial determination on quali-
fied immunity grounds.[10] In Hartman v. Moore,[11] the Supreme Court granted certiorari to
resolve a split in the Circuits and held that a plaintiff in a retaliatory-prosecution action must
plead and show the absence of probable cause for pressing the underlying criminal charges.[
12]
[FN1] See, e.g., Glik v. Cunniffe, 2011 WL 3769092, *7 (1st Cir. 2011) (citizen's right
to film officers making an arrest in a public space is a basic, vital, and well-es-
tablished liberty safeguarded by the First Amendment.); Morgan v. Swanson, 627
F.3d 170, 176 n.8, 177-82, 263 Ed. Law Rep. 22 (5th Cir. 2010), reh'g en banc granted,
628 F.3d 705 (5th Cir. 2010) (Defendants had fair warning that the suppression of
student-to-student distribution of literature on the basis of religious viewpoint is un-
lawful under the First Amendment with respect to elementary school students.);
Holzemer v. City of Memphis, 621 F.3d 512, 528 (6th Cir. 2010) ([A] reasonable city
official would have known that the Constitution prohibits retaliation for a citizen's ex-
ercise of his First Amendment right to Free Speech, whether that speech takes written,
oral, or another form.); Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) ("[I]t was
clearly established in this circuit that speech, such as parody and rhetorical hyperbole,
which cannot reasonably be taken as stating actual fact, enjoys the full protection of
the First Amendment and therefore cannot constitute the crime of criminal libel for
purposes of a probable cause determination."); Keating v. City of Miami, 598 F.3d
753, 765, 766 (11th Cir. 2010) (denying qualified immunity to supervisors who "direc-
ted their subordinate officers to use less-than-lethal weapons to disperse a crowd at a
large public demonstration and consequently failed to stop such conduct."); Eng v.
Cooley, 552 F.3d 1062, 1076, 28 I.E.R. Cas. (BNA) 1139 (9th Cir. 2009), cert. denied,
130 S. Ct. 1047, 30 I.E.R. Cas. (BNA) 224 (2010) (clearly established that government
may not retaliate against public employee for speech spoken by employee's lawyer on
employee's behalf); Beck v. City of Upland, 527 F.3d 853, 871 (9th Cir. 2008)
(arresting someone in retaliation for their exercise of free speech rights was violative
of clearly established law); Koger v. Bryan, 523 F.3d 789, 802, 70 Fed. R. Serv. 3d
532 (7th Cir. 2008) (rights protected by RLUIPA, and violated by the prison officials
were clearly established); Inouye v. Kemna, 504 F.3d 705, 714 (9th Cir. 2007) (as
amended) (The vastly overwhelming weight of authority on the precise question in
this case held at the time of [defendant's] actions that coercing participation in pro-
grams of this kind is unconstitutional By 2001, two circuit courts, at least three dis-
trict courts, and two state supreme courts had all considered whether prisoners or pa-
rolees could be forced to attend religion-based treatment programs. Their unanimous
conclusion was that such coercion was unconstitutional.); Logsdon v. Hains, 492 F.3d
334, 346 (6th Cir. 2007), cert. denied, 129 S. Ct. 35, 172 L. Ed. 2d 19 (2008) (The
contours of the First Amendment public forum doctrine are sufficiently clear. Here,
Defendants ostensibly arrested Plaintiff for violating Ohio's criminal trespass law.
However, if instead, as Plaintiff appears to allege, Defendants arrested him because of
the content of his speech, then Defendants acted in violation of the First Amendment in
ways that should have been clear to a reasonable officer.); Lovelace v. Lee, 472 F.3d
174, 199 (4th Cir. 2006) ([U]nder both the First Amendment and any straightforward
interpretation of RLUIPA, the unlawfulness of intentional and unjustified deprivations
of Ramadan meals was apparent at the time of the incident.); Jones v. Parmley, 465
F.3d 46, 57 (2d Cir. 2006) (In the protest context, the Supreme Court has already well
articulated the contours of the right and made clear that the police may not interfere
with demonstrations unless there is a clear and present danger of riot, imminent viol-
ence, interference with traffic or other immediate threat to public safety.); Bennett v.
Hendrix, 423 F.3d 1247, 1256 (11th Cir. 2005) (no qualified immunity where "defend-
ants were on notice and had 'fair warning' that retaliating against the plaintiffs for their
support of the 1998 referendum would violate the plaintiffs' constitutional rights. . . .");
Huminski v. Corsones, 396 F.3d 53, 92, (2d Cir. 2005) (as amended on rehearing)
(notices of trespass creating a "First-Amendment-Free Zone" for plaintiff alone in and
around Rutland courts violated clearly established First Amendment right of free ex-
pression); Collins v. Ainsworth, 382 F.3d 529, 544, (5th Cir. 2004) (no sheriff could
reasonably believe that use of driver's license checkpoints aimed at stopping Concert
from taking place were legal and would entitle him to qualified immunity); Dean v.
Byerley, 354 F.3d 540, 558, 2004 FED App. 0008P (6th Cir. 2004) (right to engage in
peaceful targeted residential picketing, free from retaliation, was clearly established);
Wilson v. Kittoe, 337 F.3d 392, 403 (4th Cir. 2003) (clearly established that police of-
ficer may not arrest a third party for criticizing officer's conduct and refusing to leave
the scene of an arrest); McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 2001
FED App. 0044P (6th Cir. 2001) (clearly established that plaintiff had constitutional
right to challenge verbally officer's surveillance; district court erred in granting quali-
fied immunity on the retaliation claim); Burnham v. Ianni, 119 F.3d 668, 675, 677, 120
Ed. Law Rep. 124 (8th Cir. 1997) (en banc) ("Because this case involves Ianni's sup-
pression of plaintiffs' protected speech, plaintiffs have (at least for purposes of sum-
mary adjudication) sufficiently established a violation of a constitutional right.
Here, of course, we have long established, binding precedent totally supportive of
plaintiff's claims. The Supreme Court and this court have both clearly and directly
spoken on the subject on numerous occasions and in years long prior to the 1992 cen-
sorship by Ianni. Accordingly, Chancellor Ianni's 'not clearly established' claim must
be rejected."); Cannon v. City and County of Denver, 998 F.2d 867 (10th Cir. 1993)
(officer was not entitled to qualified immunity for arresting protester carrying sign la-
beling abortion clinic as "the killing place;" officer could not reasonably have con-
cluded the sign constituted "fighting words"); Grady v. El Paso Community College,
979 F.2d 1111, 79 Ed. Law Rep. 37 (5th Cir. 1992) (defendants should have known
that speech criticizing Persian Gulf War was protected).
See also Eberhardt v. O'Malley, 17 F.3d 1023, 9 I.E.R. Cas. (BNA) 423, 22 Media L.
Rep. (BNA) 1377, 64 Empl. Prac. Dec. (CCH) P 42906 (7th Cir. 1994), where the
court concluded:
If the complaint is taken at face value, the defendants punished the plaintiff for writing
a novel, without having any legitimate reason for such punishment. This is such an ele-
mentary violation of the First Amendment that the absence of a reported case with similar
facts demonstrates nothing more than widespread compliance with well-recognized consti-
tutional principles.
17 F.3d at 1028.
Compare Gilles v. Davis, 427 F.3d 197, 206 (3d Cir. 2005) (officer entitled to quali-
fied immunity "because it would not have been clear to a reasonable officer that
[Plaintiff] did not engage in disorderly conduct.") and Gold v. City of Miami, 121 F.3d
1442, 1446 (11th Cir. 1997) ("Given that what constitutes legally proscribed disorderly
conduct is subject to great subjective interpretation of specific facts we are con-
strained to conclude that a reasonable officer in the same circumstances and possessing
the same knowledge as the officers in this case could have reasonably believed that
probable cause existed to arrest Gold for disorderly conduct. The evidence, viewed in
the light most favorable to Gold, reflects that Gold twice used profanities in a loud
voice, in a public place, and in the presence of others. At the time, no cases clearly es-
tablished that those actions did not constitute legally proscribed disorderly conduct.")
with Sandul v. Larion, 119 F.3d 1250, 1255, 1997 FED App. 0222P (6th Cir. 1997)
(rejected on other grounds by, Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 46 Fed. R.
Serv. 3d 900 (1st Cir. 2000)) ("In 1990 when Sandul was arrested for his use of the 'f-
word,' it was clearly established that speech is entitled to First Amendment protection
with the exception of fighting words."). See also Gold v. City of Miami, 138 F.3d 886,
888 (11th Cir. 1998) (Barkett, J., dissenting from denial of rehearing en banc):
Under Lanier's fair warning standard, the police officers are not entitled to qualified im-
munity in this case. First, at the time of Gold's arrest, the Supreme Court had specifically
held that speech critical of police officers is constitutionally protected. Second, as the pan-
el opinion recognizes, the Florida Supreme Court had specifically reversed, as violative of
the First Amendment, disorderly conduct convictions of defendants who had not only used
expletives, but also made threatening comments to police officersconduct far more egre-
gious than Gold's. Finally, every other circuit that has addressed the issue of qualified im-
munity in a situation similar to that present here has had no trouble concluding that a po-
lice officer is not entitled to qualified immunity in these circumstances.
[FN2] See, e.g., Diaz-Bigio v. Santini, 32 I.E.R. Cas. (BNA) 719, 2011 WL 2557003,
*7 (1st Cir. 2011) (Under a long line of cases from this circuit granting qualified im-
munity, the defendants are entitled to summary judgment because the outcome of the
Pickering balancing of interests in this case was not so clear as to put all reasonable of-
ficials on notice that firing Daz-Bigio would violate the law.); Doninger v. Niehoff,
642 F.3d 334, 350, 351, 356 (2d Cir. 2011), petition for cert. filed (U.S. July 25, 2011)
(given the circumstances of this case, it was not clearly established that student had
any First Amendment right not to be prohibited from running for Senior Class Secret-
ary because of offensive off-campus blog post; nor was it clearly established that pro-
hibiting the wearing of t-shirts [Vote for Avery] to student assembly was unlawful
where reasonable official could have believed there was a potential for substantial dis-
ruption); Leverington v. City of Colorado Springs, 643 F.3d 719, 732-33, 32 I.E.R.
Cas. (BNA) 260 (10th Cir. 2011) (not clearly established that plaintiff's statement to
officer did not constitute a 'true threat' unprotected by the First Amendment.); Weise
v. Casper, 593 F.3d 1163, 1167, 1170 (10th Cir. 2010), cert. denied, 131 S. Ct. 7
(2010) (qualified immunity granted on second prong of analysis where court concluded
"no specific authority instructs this court (let alone a reasonable public official) how to
treat the ejection of a silent attendee from an official speech based on the attendee's
protected expression outside the speech area."); Cross v. Mokwa, 547 F.3d 890, 897
(8th Cir. 2008) (not clearly established that officer could be liable on prior restraint
theory for making arrests supported by probable cause that occupants of condemned
buildings were there illegally); Center for Bio-Ethical Reform, Inc. v. Los Angeles
County Sheriff Dept., 533 F.3d 780, 794 (9th Cir. 2008), cert. denied, 129 S. Ct. 903,
173 L. Ed. 2d 108, 240 Ed. Law Rep. 17 (2009) ([T]here is some question whether
the heckler's veto consideration applies where the target audience consists of children.
As far as we have been able to determine, there is no case law holding either that it
does or that it does not. In these circumstances, we cannot conclude that the law was
sufficiently clear that a reasonable officer would know that it was unlawful to request
the Plaintiffs to cease driving their truck around the area.); Fogel v. Collins, 531 F.3d
824, 834 (9th Cir. 2008) ([I]n May 2004, when the officers acted, there was no repor-
ted case in which a person in the post-September 11 environment satirically pro-
claimed himself or herself to be a terrorist in possession of weapons of mass destruc-
tion. We do not, by our invocation of September 11, 2001, suggest that the First
Amendment provides less protection than before September 11. Rather, we recognize
that what might previously have been understood as relatively harmless talk might, in
the immediate aftermath of September 11, have been understood to constitute a real
threat.); King v. Ambs, 519 F.3d 607, 615 (6th Cir. 2008) (reasonable officer would
not have known that enforcement of obstruction ordinance in the context of this case
violated the First Amendment); Porter v. Bowen, 496 F.3d 1009, 1027 (9th Cir. 2007)
(reasonable official would not have understood that threatening the owners of vote-
swapping Web sites with prosecution constituted a violation of the First Amend-
ment.); Zieper v. Metzinger, 474 F.3d 60, 68, 35 Media L. Rep. (BNA) 1331 (2d Cir.
2007) (Here, our pre-existing law would not have made apparent to a reasonable of-
ficer that defendants' actions crossed the line between an attempt[ ] to convince and
[an] attempt[ ] to coerce because the cases in which we have held that individuals'
First Amendment rights were violated involved conduct more likely to be perceived as
threatening than that here.); Hosty v. Carter, 412 F.3d 731, 739, 199 Ed. Law Rep. 91,
33 Media L. Rep. (BNA) 1897 (7th Cir. 2005) (qualified immunity where reasonable
person in Dean's position would not have known that "demand for review before the
University would pay the [student publication's] printing bills violated the first amend-
ment."); Porter v. Ascension Parish School Bd., 393 F.3d 608, 620, 194 Ed. Law Rep.
497 (5th Cir. 2004) (qualified immunity for school official who recommended expul-
sion of student for off-campus student drawings, brought on campus by student's
younger brother and considered to be threatening, although court determined drawings
did not constitute on-campus speech and did not intentionally communicate a threat);
Galvin v. Hay, 374 F.3d 739 (9th Cir. 2004) (not clearly established that "conditioning
a march permit on a promise to abide by the law when there was a history of organized
civil disobedience by the same group along the same route is an insufficiently tailored
manner restriction"); S.G. ex rel. A.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423,
178 Ed. Law Rep. 36 (3d Cir. 2003) (no clearly established law indicated that school's
prohibition of speech threatening violence and use of firearms was unconstitutional);
Duamutef v. Hollins, 297 F.3d 108 (2d Cir. 2002) ("[N]o rational jury could find that
defendants' decision to institute a temporary mail watch was not reasonably related to
legitimate penological interests. There was no violation of plaintiff's First Amendment
rights and, in any event, defendants are entitled to qualified immunity."); Denno v.
School Bd. of Volusia County, Fla., 218 F.3d 1267, 1275, 145 Ed. Law Rep. 942 (11th
Cir. 2000) ("The balancing analysis under the Fraser standard would be analogous to
that discussed by this court in a case involving a public employer's discharge of an em-
ployee because of the employee's comments to the press on matters of public concern.
Similarly, we cannot conclude that a Fraser balancing of the circumstances in the
instant case would lead to the inevitable conclusion that the individual defendants here
violated the First Amendment rights of the students. We cannot conclude that the pro-
hibition of the displays of the Confederate flag in this case are 'so obviously wrong, in
the light of pre-existing law, that only a plainly incompetent officer or one who was
knowingly violating the law would have done such a thing.'"); Devereaux v. Perez, 218
F.3d 1045, 1055 (9th Cir. 2000), on reh'g en banc, 263 F.3d 1070 (9th Cir. 2001) ("The
need to subject this abstract substantive constitutional right to a balancing test which
weighs the interest of a parent against the interests of the child and the state makes the
qualified immunity defense difficult to overcome, especially in light of the requirement
that the substantive constitutional right be 'clearly established' at the time of the al-
leged violation."). See also Lederman v. U.S., 291 F.3d 36, 39 (D.C. Cir. 2002)
(finding that the sidewalk at the foot of the House and Senate steps was a public forum
and that no part of the ban on leafleting and other demonstration activities was nar-
rowly tailored to further a significant governmental purpose, court declared ban uncon-
stitutional, but granted qualified immunity to Capitol Police because they "violated no
clearly established legal rules in arresting Appellant for leafleting in violation of the
ban").
But see Evans-Marshall v. Board of Educ. of Tipp City Exempted Village School
Dist., 428 F.3d 223, 232, 203 Ed. Law Rep. 88, 23 I.E.R. Cas. (BNA) 1153, 151 Lab.
Cas. (CCH) P 60101, 2005 FED App. 0432P (6th Cir. 2005) (no qualified immunity
where teacher "was terminated due to a public outcry engendered by the assignment of
protected material that had been approved by the Board."); Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1278, 188 Ed. Law Rep. 620 (11th Cir. 2004) ("Tinker-
Burnside standard was clearly established and sufficiently specific as to give the de-
fendants 'fair warning' that student had constitutional right to put his fist in air during
recitation of Pledge of Allegiance); Mihos v. Swift, 358 F.3d 91, 110, 20 I.E.R. Cas.
(BNA) 1680, 149 Lab. Cas. (CCH) P 59843 (1st Cir. 2004) ("No reasonable public of-
ficial could have failed to realize that a member of a public instrumentality cannot be
terminated. . . for voting on matters of public concern within his authority"); Love-
Lane v. Martin, 355 F.3d 766, 784, 184 Ed. Law Rep. 133, 93 Fair Empl. Prac. Cas.
(BNA) 282, 20 I.E.R. Cas. (BNA) 1409 (4th Cir. 2004) (interests to be balanced under
Pickering weigh so heavily in Love-Lane's favor that her right to speak about race dis-
crimination in a public school was clearly established); Mansoor v. Trank, 319 F.3d
133, 140, 19 I.E.R. Cas. (BNA) 996, 148 Lab. Cas. (CCH) P 59723 (4th Cir. 2003) (no
qualified immunity where defendants conceded they had no interest in restricting
clearly protected speech); Coady v. Steil, 187 F.3d 727, 734, 15 I.E.R. Cas. (BNA)
712, 139 Lab. Cas. (CCH) P 58731 (7th Cir. 1999) ("[B]ecause Connick-Pickering bal-
ancing always involves factspecific balancing, if plaintiffs had to point to a case on all
fours with their own, defendants would nearly always be entitled to qualified im-
munity. However, we have rejected that argument."); Gilbrook v. City of Westminster,
177 F.3d 839, 870, 15 I.E.R. Cas. (BNA) 200, 15 I.E.R. Cas. (BNA) 554, 52 Fed. R.
Evid. Serv. 363 (9th Cir. 1999), as amended on denial of reh'g, (July 15, 1999) ("Pick-
ering balance so clearly weighs in favor of [plaintiff] that it was patently unreasonable
for defendants to conclude that the First Amendment did not protect his speech."); Har-
ris v. Victoria Independent School Dist., 168 F.3d 216, 224, 132 Ed. Law Rep. 662, 14
I.E.R. Cas. (BNA) 1550 (5th Cir. 1999) ("The Defendants are not insulated from their
unconstitutional conduct merely because a balancing test is involved in our analysis.
While employee speech cases are a likely vehicle for varied fact scenarios, the law is
clearly established that a 'mix of public and private speech' may be constitutionally
protected.").
[FN3] See Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County,
Illinois, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811, 1 I.E.R. Cas. (BNA) 8 (1968).
See also Oladeinde v. City of Birmingham, 230 F.3d 1275, 1290, 1293, 144 Lab. Cas.
(CCH) P 59316 (11th Cir. 2000) ("In a law enforcement agency, there is a heightened
need for order, loyalty, morale and harmony, which affords a police department more
latitude in responding to the speech of its officers than other government employers
We conclude that the plaintiffs' speech was not protected because their interest in
speaking out was outweighed by the BPD's interests in maintaining order, loyalty,
morale, and harmony.").
[FN4] Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689, 24
I.E.R. Cas. (BNA) 737, 87 Empl. Prac. Dec. (CCH) P 42353, 152 Lab. Cas. (CCH) P
60203 (2006). The Supreme Court granted certiorari on the question of whether "a
public employee's purely job-related speech, expressed strictly pursuant to the duties of
employment, [should] be cloaked with First Amendment protection simply because it
touches on a matter of public concern, or should First Amendment protection also re-
quire the speech to be engaged in 'as a citizen', in accordance with this Court's holdings
in Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, 391
U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811, 1 I.E.R. Cas. (BNA) 8 (1968) and Connick
v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708, 1 I.E.R. Cas. (BNA) 178
(1983).
[FN5] Garcetti, 126 S. Ct. at 1960. The Court specifically did not decide "whether the
analysis we conduct today would apply in the same manner to a case involving speech
related to scholarship or teaching." 126 S. Ct. at 1962. Compare Adams v. Trustees of
the University of N.C.-Wilmington, 640 F.3d 550, 564, 267 Ed. Law Rep. 501, 111
Fair Empl. Prac. Cas. (BNA) 1665, 32 I.E.R. Cas. (BNA) 1 (4th Cir. 2011) (Applying
Garcetti to the academic work of a public university faculty member under the facts of
this case could place beyond the reach of First Amendment protection many forms of
public speech or service a professor engaged in during his employment. That would
not appear to be what Garcetti intended, nor is it consistent with our long-standing re-
cognition that no individual loses his ability to speak as a private citizen by virtue of
public employment. In light of the above factors, we will not apply Garcetti to the cir-
cumstances of this case.) and Evans-Marshall v. Board of Educ. of Tipp City Exemp-
ted Village School Dist., 624 F.3d 332, 342, 343, 261 Ed. Law Rep. 904, 31 I.E.R.
Cas. (BNA) 481, 160 Lab. Cas. (CCH) P 10317 (6th Cir. 2010), cert. denied, 32 I.E.R.
Cas. (BNA) 704, 2011 WL 1576895 (U.S. 2011) (In concluding that the First Amend-
ment does not protect primary and secondary school teachers' in-class curricular
speech, we have considerable company. [collecting cases] The common thread through
all of these cases is that, when it comes to in-class curricular speech at the primary or
secondary school level, no other court of appeals has held that such speech is protected
by the First Amendment.).
[FN6] Garcetti, 126 S. Ct. at 1959, 1960. For post-Garcetti cases, see, e.g., Hernandez
v. Cook County Sheriff's Office, 634 F.3d 906, 915, 916, 31 I.E.R. Cas. (BNA) 1681
(7th Cir. 2011) ([P]laintiffs were acting as public employees when they complained
about unsafe conditions at the jail[,] and thus had no First Amendment protection
from retaliation); Anemone v. Metropolitan Transp. Authority, 629 F.3d 97, 117, 31
I.E.R. Cas. (BNA) 1167, 94 Empl. Prac. Dec. (CCH) P 44102 (2d Cir. 2011) (contacts
of Director of Security of New York Metropolitan Transportation Authority with DA's
office were clearly official, part and parcel of his duties and did not constitute pro-
tected speech); Bonn v. City of Omaha, 623 F.3d 587, 593, 110 Fair Empl. Prac. Cas.
(BNA) 929, 31 I.E.R. Cas. (BNA) 592, 93 Empl. Prac. Dec. (CCH) P 44010 (8th Cir.
2010) (Public safety auditor for city was not speaking as a citizen when she made com-
ments to the media regarding her report on traffic stops, and thus, the First Amendment
did not protect such speech; auditor acted in response to media inquiries about report
she published as part of her work, media identified her as a public official rather than
private citizen, and auditor's job duties included speaking to media about her work);
Chamberlin v. Town of Stoughton, 601 F.3d 25, 35, 30 I.E.R. Cas. (BNA) 1177 (1st
Cir. 2010) ("As two senior officers in the police department, it was within the scope of
both plaintiffs' duties to cooperate with the district attorney and the special prosecutor
in investigating alleged criminal activity within the police department."); Foley v.
Town of Randolph, 598 F.3d 1, 10, 30 I.E.R. Cas. (BNA) 718 (1st Cir. 2010) (Board
did not violate Fire Chief's free speech right "when they concluded that it was inappro-
priate for [Chief] to address budgetary and staffing issues" in context of speaking to
media at scene of fatal fire); Weintraub v. Board of Educ. of City School Dist. of City
of New York, 593 F.3d 196, 203, 253 Ed. Law Rep. 17, 30 I.E.R. Cas. (BNA) 353, 187
L.R.R.M. (BNA) 3217, 93 Empl. Prac. Dec. (CCH) P 43802, 159 Lab. Cas. (CCH) P
60938 (2d Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3102 (U.S. Aug. 11, 2010)
(joining Ninth, Tenth, and Eleventh Circuits and concluding that "under the First
Amendment, speech can be 'pursuant to' a public employee's official job duties even
though it is not required by, or included in, the employee's job description, or in re-
sponse to a request by the employer."); Bivens v. Trent, 591 F.3d 555, 560, 30 I.E.R.
Cas. (BNA) 250, 93 Empl. Prac. Dec. (CCH) P 43814, 159 Lab. Cas. (CCH) P 60937
(7th Cir. 2010) ("It is undisputed that Bivens was responsible for the safe operation of
the firing range and consequently that he had a responsibility, as part of his job duties,
to report his concerns about environmental lead contamination. Thus, under Garcetti, it
is clear that the complaints about lead contamination that Bivens made directly up the
chain of command to his supervisors are not protected by the First Amendment.");
Fairley v. Andrews, 578 F.3d 518, 522, 29 I.E.R. Cas. (BNA) 1050 (7th Cir. 2009),
cert. denied, 130 S. Ct. 3320, 30 I.E.R. Cas. (BNA) 1248 (2010) (county jail guards'
reports about alleged inmate abuse at jail perpetrated by other guards was not protected
speech under the First Amendment); Huppert v. City of Pittsburg, 574 F.3d 696, 29
I.E.R. Cas. (BNA) 911 (9th Cir. 2009) (disagreeing with Third Circuit's decision in Re-
illy and concluding that officer's testimony before grand jury was not protected by First
Amendment); Houskins v. Sheahan, 549 F.3d 480, 91 Empl. Prac. Dec. (CCH) P
43393 (7th Cir. 2008) (county corrections department's social worker's internal com-
plaint to department's internal affairs division, alleging that she had been assaulted by
corrections officer in parking lot, was speech made pursuant to social worker's official
duties); Kline v. Valentic, 283 Fed. Appx. 913 (3d Cir. 2008) (complaints of police of-
ficer up the chain of command about false statements made during an investigation in-
to his own conduct as a police officer did not constitute protected speech); Callahan v.
Fermon, 526 F.3d 1040, 1045, 27 I.E.R. Cas. (BNA) 1144, 91, 91 Empl. Prac. Dec.
(CCH) P 43198 (7th Cir. 2008), cert. denied, 129 S. Ct. 2734, 174 L. Ed. 2d 247, 29
I.E.R. Cas. (BNA) 256 (2009) (complaints made by lieutenant in Illinois State Police
to Department of Internal Investigation about misconduct of police captain and com-
mander, not protected under First Amendment); Vose v. Kliment, 506 F.3d 565, 26
60512 (7th Cir. 2007), cert. denied, 128 S. Ct. 2500, 171 L. Ed. 2d 785, 27 I.E.R. Cas.
(BNA) 1120 (2008) (police officer's reports to his supervisors about suspected miscon-
duct by other officers were not protected speech); Foraker v. Chaffinch, 501 F.3d 231,
26 I.E.R. Cas. (BNA) 863, 155 Lab. Cas. (CCH) P 60496 (3d Cir. 2007) (state troop-
ers' complaints up the chain of command and to State Auditor regarding problems at
firing range were not protected by First Amendment because their statements fell with-
in the scope of their duties as troopers); Morales v. Jones, 494 F.3d 590, 26 I.E.R. Cas.
(BNA) 555, 154 Lab. Cas. (CCH) P 60454 (7th Cir. 2007), cert. denied, 552 U.S.
1099, 128 S. Ct. 905, 169 L. Ed. 2d 729, 26 I.E.R. Cas. (BNA) 1792 (2008) and cert.
denied, 128 S. Ct. 931, 169 L. Ed. 2d 729, 26 I.E.R. Cas. (BNA) 1792 (2008) (police
officer's speech informing another officer and an ADA about allegations made by pur-
ported witness that the police chief and deputy chief had previously harbored an indi-
vidual the officers had just arrested, while that individual was wanted on felony war-
rants, was made pursuant to the officer's official duties, and thus, was not protected
speech under the First Amendment); Green v. Barrett, 226 Fed. Appx. 883 (11th Cir.
2007) (prison guard who reported possible breach of prison security to assistant super-
intendent as part of her official responsibilities as guard to keep prison secure did not
engage in protected citizen speech; Chief jailer's testimony at hearing to determine
whether county jail was safe place for convicted murder to be housed, that jail was un-
safe in that many of cell locks were not functioning and that may inmates had regularly
let themselves out of cells at night, was not protected speech under First Amendment);
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 89 Empl. Prac. Dec. (CCH) P 42867
(7th Cir. 2007) (Police detective's report to his supervisors, that he believed that mem-
bers of his drug investigation task force broke the law by tipping off suspects regarding
arrest warrants was speech made pursuant to his official duties as a detective and was
not protected.); Spiegla v. Hull, 481 F.3d 961, 25 I.E.R. Cas. (BNA) 1508, 89, 89 Em-
pl. Prac. Dec. (CCH) P 42770, 154 Lab. Cas. (CCH) P 60383 (7th Cir. 2007) (guard re-
ported possible breach of prison security as part of her official responsibilities to keep
prison secure, and thus did not engage in citizen speech that was protected from First
Amendment retaliation); Bradley v. James, 479 F.3d 536, 217 Ed. Law Rep. 31, 25
60373 (8th Cir. 2007) (Allegations of state university police force officer, that police
chief was intoxicated and disrupted the investigation of an incident in a student dormit-
ory, were made pursuant to officer's official and professional duties and was not en-
titled to First Amendment protection); Haynes v. City of Circleville, Ohio, 474 F.3d
357, 25 I.E.R. Cas. (BNA) 1050, 90 Empl. Prac. Dec. (CCH) P 42978, 2007 FED App.
0037P (6th Cir. 2007) (officer's speech complaining about training cutbacks in canine
unit was not protected); Mills v. City of Evansville, Ind., 452 F.3d 646, 24 I.E.R. Cas.
(BNA) 1293, 88 Empl. Prac. Dec. (CCH) P 42423, 152 Lab. Cas. (CCH) P 60219 (7th
Cir. 2006) (police sergeant, who criticized a plan to reduce the number of officers un-
der her command at a meeting with her superiors, spoke as an employee and not as a
citizen, and thus, speech was not protected).
But see Jackler v. Byrne, 2011 WL 2937279, *6, *14, *16 (2d Cir. 2011) (on prong
one of qualified immunity, holding officer's claim that he was retaliated against for his
refusal to obey supervisors' instructions to retract truthful report relating to another of-
ficer's use of excessive force and file a false report was not controlled by Garcetti and
was within the scope of First Amendment protection; on prong two, leaving qualified
immunity question for resolution by district court after issues of fact resolved by jury,
but noting that [a]ny uncertainty [in circuit's prior clearly established law] intro-
duced by Garcetti and Weintraub, which were not decided until after defendants' re-
taliation against [plaintiff] would not entitle defendants to qualified immunity be-
cause the availability of that defense depends on whether the unlawfulness of their
conduct was apparent in light of pre-existing law.); Watkins v. Kasper, 599 F.3d
791, 796 (7th Cir. 2010) (holding "that the public concern test developed in the public
employment context has no application to prisoners' First Amendment claims, even in
the case of speech by a prisoner-employee."); Rangra v. Brown, 566 F.3d 515, 523,
524, 28 I.E.R. Cas. (BNA) 1807, 37 Media L. Rep. (BNA) 1724 (5th Cir. 2009), reh'g
en banc granted, 576 F.3d 531 (5th Cir. 2009) and on reh'g en banc, 584 F.3d 206 (5th
Cir. 2009) (Garcetti does not affect speech of elected government officials); Reilly v.
City of Atlantic City, 532 F.3d 216, 230233, 27 I.E.R. Cas. (BNA) 1511 (3d Cir.
2008), cert. denied, 129 S. Ct. 1316, 173 L. Ed. 2d 585, 28 I.E.R. Cas. (BNA) 1344
(2009) (trial testimony arising out of employee's official responsibilities is protected
under First Amendment); Shingara v. Skiles, 274 Fed. Appx. 164 (3d Cir. 2008)
(testimony of civilian employee of Pennsylvania State Police in criminal proceeding
regarding deficiencies in radar equipment was protected, but not letter complaining to
superiors about supervisor's conduct); Freitag v. California Dept. of Corrections, 289
Fed. Appx. 146 (9th Cir. 2008) (letter written by correctional officer to Director of
CDCR on personal stationary, outside of working hours, complaining of supervisors'
failure to take any action against sexual misconduct of prisoners that created a hostile
working environment, was protected speech). See also Beckinger v. Township of
Elizabeth, 2011 WL 2559446, *4 (3d Cir. 2011) (not published) (Reilly does not
stand for the proposition that a law enforcement officer has a First Amendment right to
attend voluntarily a parking ticket adjudication hearing in derogation of direct orders to
the contrary.).
There appears to be some disagreement as to whether what constitutes speech pursuant
to an employee's official duties is a question of law to be decided by the judge or a
question of fact to be submitted to a jury. Compare Williams v. Riley, 392 Fed. Appx.
237 (5th Cir. 2010) (in retaliation suit brought by prison officials claiming they were
fired for reporting sergeant's misconduct, court held that prior Court of Appeals de-
cision concluding that whether officers' report was made pursuant to their official du-
ties was a question of fact was the law of the case); Robinson v. York, 566 F.3d 817,
823, 28 I.E.R. Cas. (BNA) 1802, 157 Lab. Cas. (CCH) P 60799 (9th Cir. 2009), cert.
denied, 130 S. Ct. 1047, 30 I.E.R. Cas. (BNA) 224 (2010) (scope of job duties is a
question of fact) and Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121,
1123, 238 Ed. Law Rep. 537, 28 I.E.R. Cas. (BNA) 385, 156 Lab. Cas. (CCH) P 60685
(9th Cir. 2008) (noting and discussing circuit split on this question and agreeing with
the Third, Seventh, and Eighth Circuits that after Garcetti the inquiry into the protec-
ted status of speech presents a mixed question of fact and law, and specifically that the
question of the scope and content of a plaintiff's job responsibilities is a question of
fact) with Fox v. Traverse City Area Public Schools Bd. of Educ., 605 F.3d 345, 350,
351, 257 Ed. Law Rep. 23, 30 I.E.R. Cas. (BNA) 1264, 93 Empl. Prac. Dec. (CCH) P
43902 (6th Cir. 2010), cert. denied, 131 S. Ct. 643 (2010) (noting division among cir-
cuits on the question, collecting cases, and concluding that "we have consistently de-
scribed the question of whether, in a First Amendment retaliation action, a public em-
ployee's speech is protected as one of law, not one of both fact and law.") and Hesse v.
Town of Jackson, Wyo., 541 F.3d 1240, 1249, 28 I.E.R. Cas. (BNA) 307, 156 Lab.
Cas. (CCH) P 60675 (10th Cir. 2008) (Whether a public employee's statement was
made pursuant to his official duties is a question of law.).
[FN7] See, e.g., McKee v. Hart, 436 F.3d 165, 173, 23 I.E.R. Cas. (BNA) 1527, 152
Lab. Cas. (CCH) P 60134 (3d Cir. 2006) (qualified immunity where there was "dearth
of precedent of sufficient specificity (and factual similarity to this case) regarding a
public employee's First Amendment right to be free from retaliatory harassment by his
or her employer at the time of [Defendant's] conduct."); Wagner v. City Of Holyoke,
Massachusetts, 404 F.3d 504, 509, 22 I.E.R. Cas. (BNA) 1290, 151 Lab. Cas. (CCH) P
59991 (1st Cir. 2005) (Plaintiff's "broad range of complaints (some consisting of un-
protected and antagonistic speech), coupled with his disregard of confidentiality proto-
cols and his disobedience in following the department's chain of command, would have
permitted a reasonable superior officer to believe that he was entitled to discipline
Wagner regardless of the content of his speech, consistent with the protections of the
first amendment. Even if this reasoning were mistaken, it would not have been egre-
giously so and, accordingly, qualified immunity is available."); Dirrane v. Brookline
Police Dept., 315 F.3d 65, 70, (1st Cir. 2002) (although "allegations have the structure
of a classic cover-up in which the whistleblower suffered an adverse change in em-
ployment 'because' of his speech on a public issue[,] where there is a lack of preced-
ent, this is not a case in which a reasonable officer must have known that he was acting
unconstitutionally" [footnote omitted]); Meyers v. City of Cincinnati, 979 F.2d 1154
(6th Cir. 1992); Egger v. Phillips, 710 F.2d 292 (7th Cir. 1983) (en banc). See also
Walker v. Elbert, 75 F.3d 592, 59899, 106 Ed. Law Rep. 1043 (10th Cir. 1996)
(although dress code that absolutely prohibited employees from wearing slogans at
work was found to violate First Amendment, court upheld jury's conclusion that reas-
onable official in defendant's position would not have known of the relevant legal
standards). See also Vega v. Miller, 273 F.3d 460, 468, 159 Ed. Law Rep. 500, 18
59466 (2d Cir. 2001) (without deciding whether termination of plaintiff's employment
was unconstitutional, court granted qualified immunity because "Defendants could
reasonably believe that in disciplining Vega for not exercising professional judgment
to terminate the episode, they were not violating his clearly established First Amend-
ment academic freedom rights").
[FN8] Melton v. City of Oklahoma City, 879 F.2d 706, R.I.C.O. Bus. Disp. Guide
(CCH) P 7256 (10th Cir. 1989), on reh'g, 928 F.2d 920 (10th Cir. 1991).
[FN9] See also Kinney v. Weaver, 367 F.3d 337, 371, 372, 21 I.E.R. Cas. (BNA) 313
(5th Cir. 2004) (en banc) (no qualified immunity for police officials who retaliated
against instructors at police academy who had testified for plaintiff in an excessive
force case against a police officer whom they had not trained and a department that had
never enrolled its officers in their training academy); Branton v. City of Dallas, 272
F.3d 730, 744, 746, 18 I.E.R. Cas. (BNA) 144, 145 Lab. Cas. (CCH) P 59472 (5th Cir.
2001) ("[A] reasonably objective public official, identically situated in Chief Click's
position, would have known that adverse employment action against an employee for
her speech concerning false testimony by a fellow officer would violate a clearly estab-
lished constitutional right."); Cooper v. Smith, 89 F.3d 761, 11 I.E.R. Cas. (BNA)
1703 (11th Cir. 1996) (finding it clearly established that it was a violation of plaintiff's
First Amendment rights to refuse to renew his commission based on his cooperation
withlaw enforcement investigation); Pro v. Donatucci, 81 F.3d 1283, 129192, 11
I.E.R. Cas. (BNA) 1063 (3d Cir. 1996) (employee's right to respond to subpoena
without fear of retaliation was clearly established); Williams v. Com. of Ky., 24 F.3d
1526, 29 Fed. R. Serv. 3d 264, 1994 FED App. 0174P (6th Cir. 1994) (where employ-
ee spoke on matter of great public concern and impact on efficiency of office was min-
imal, no immunity); Branton v. City of Dallas, 272 F.3d 730, 744, 746, 18 I.E.R. Cas.
(BNA) 144, 145 Lab. Cas. (CCH) P 59472 (5th Cir. 2001) ("[A] reasonably objective
public official, identically situated in Chief Click's position, would have known that
adverse employment action against an employee for her speech concerning false testi-
mony by a fellow officer would violate a clearly established constitutional right."); Re-
idenbach v. U.S.D. No. 437, 912 F. Supp. 1445, 1455, 106 Ed. Law Rep. 1107 (D.
Kan. 1996) ("[T]he law is well-settled that statements concerning the safety of school
children touch on a matter of public concern").
[FN10] See, e.g., Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1145, 98 Fair Empl.
Prac. Cas. (BNA) 499, 24 I.E.R. Cas. (BNA) 993, 88 Empl. Prac. Dec. (CCH) P 42412,
152 Lab. Cas. (CCH) P 60205 (10th Cir. 2006) ("Chief Palmer does not dispute that it
was clearly established that non-neutral state action imposing a substantial burden on
the exercise of religion violates the First Amendment. If Officer Shrum's factual alleg-
ations are correctthat he was singled out precisely because of Chief Palmer's know-
ledge of his religious commitmentthen Chief Palmer's claim of qualified immunity
must fail. Only if the finder of fact ultimately concludes, as a matter of fact, that Chief
Palmer had a neutral basis for his personnel actions, does he have a defense. This is
thus a case where the claim of qualified immunity collapses into the merits. The dis-
trict court was correct to hold that it should proceed to trial on the free exercise
claim."); Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (no doubt that transfer to
more dangerous prison as penalty for exercise of constitutional rights would deter in-
mate from future exercise of those rights); Locurto v. Safir, 264 F.3d 154, 164, 170, 17
I.E.R. Cas. (BNA) 1569, 145 Lab. Cas. (CCH) P 59476 (2d Cir. 2001) (dismissing in-
terlocutory appeal for lack of appellate jurisdiction where district court denied quali-
fied immunity based on genuine issue of material fact as to unlawful intent, "a neces-
sary element of plaintiffs' properly framed First Amendment retaliation claim.");
Walker v. Schwalbe, 112 F.3d 1127, 1132, 12 I.E.R. Cas. (BNA) 1507 (11th Cir. 1997)
("Defendants argue that denial of qualified immunity here would be equivalent to the
court's holding that once an employee has engaged in First Amendment speech he may
no longer be punished for valid reasons. This argument misses the point. An employee
may still be punished for valid reasons. However, when the employee can establish a
genuine issue of material fact that the true reason for the punishment was actually the
speech, then the case must go to trial."). See also Bennis v. Gable, 823 F.2d 723, 2
I.E.R. Cas. (BNA) 1325 (3d Cir. 1987). But see McCullough v. Wyandanch Union
Free School Dist., 187 F.3d 272, 280, 137 Ed. Law Rep. 505, 15 I.E.R. Cas. (BNA)
587, 139 Lab. Cas. (CCH) P 58723 (2d Cir. 1999) ("Where there is a 'total absence of
evidence of retaliation,' there is no basis on which to conclude that the defendant seek-
ing qualified immunity violated clearly established law."); Rodriguez v. Phillips, 66
F.3d 470, 479 (2d Cir. 1995) (where there was no clearly established right to approach
and speak to corrections officer, "even if [officer's] actions were in retaliation for that
exchange, the corrections officer still was entitled to qualified immunity.").
[FN11] Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006).
[FN12] Hartman, 126 S. Ct. at 1701-07. See also Beck v. City of Upland, 527 F.3d
853, 865 (9th Cir. 2008) ([I]n any constitutional tort case, including Fourth Amend-
ment-based cases, in which a prosecutor has instigated a prosecution, it is necessary, if
not sufficient, that a plaintiff seeking to sue non-prosecutorial officials alleged to be
responsible post-complaint for the arrest or prosecution show the absence of probable
cause.); Leonard v. Robinson, 477 F.3d 347, 355, 356, 2007 FED App. 0051P (6th
Cir. 2007) (Although there are differences between wrongful arrest and malicious
prosecution, there is an obvious similarity in that the significance of probable
cause or the lack of it looms large, . Hartman, therefore, calls into question our
cases holding that probable cause is not determinative of the [First Amendment] con-
stitutional question.); Barnes v. Wright, 449 F.3d 709, 718-20, 36 Envtl. L. Rep.
20100, 2006 FED App. 0187P (6th Cir. 2006) ("Regardless of the reasoning, it is clear
that the Hartman rule modifies our holdings in McCurdy and Greene and applies in
this case. As discussed above with regard to Barnes's malicious-prosecution claim, the
defendants had probable cause to seek an indictment and to arrest Barnes on each of
the criminal charges in this case. Barnes's First Amendment retaliation claim accord-
ingly fails as a matter of law, and we reverse the district court's denial of qualified im-
munity to the officers on this issue."). But see Moore v. Hartman, 2011 WL 2739835,
*5 n.8 (D.C. Cir. 2011) (noting split in circuits but taking no position as to requirement
of no-probable-cause showing for First Amendment retaliatory arrest cases; holding in
First Amendment inducement-to-prosecute case, absence of probable cause is not an
element of the right allegedly violated but goes only to establishing causation, and thus
has no bearing on whether a defendant has violated a clearly established constitu-
tional right [] of which a reasonable person would have known.); Kennedy v. City of
Villa Hills, Ky., 635 F.3d 210, 219 (6th Cir. 2011) (right to be free from retaliatory ar-
rest after insulting an officer was clearly established); Howards v. McLaughlin, 634
F.3d 1131, 1147 (10th Cir. 2011) (In the wake of Hartman, our sister circuits contin-
ue to be split over whether Hartman applies to retaliatory arrests, that is, whether a
plaintiff in that retaliation context must show that the defendants lacked probable cause
for the arrest. [collecting cases] . We decline to extend Hartman's 'no-prob-
able-cause' requirement to this retaliatory arrest case.); Skoog v. County of Clacka-
mas, 469 F.3d 1221, 1229, (9th Cir. 2006) (distinguishing claim of retaliatory seizure
from retaliatory prosecution and concluding plaintiff need not plead absence of prob-
able cause to state claim for retaliatory seizure of his camera; recognizing right of indi-
vidual to be free from police action motivated by retaliatory animus but for which
there was probable casue[,] but granting qualified immunity because the law was not
clearly established); Hrichak v. Kennebec County Sheriff, 2007 WL 1170778 (D. Me.
2007), opinion amended and superseded, 2007 WL 1229404 (D. Me. 2007), decision
aff'd, 2007 WL 1501084 (D. Me. 2007), order amended and superseded, 2007 WL
1610178 (D. Me. 2007) (There is a Circuit split on the question of whether or not,
what is now the Hartman rule, of pleading and proving the absence of probable cause
applies to retaliatory arrests. [citing cases] I am simply not convinced that the rationale
of Hartman applies to a claim such as Hrichak's against the arresting officers involved
in a spur-of-the-moment, warrantless arrest.).
POLICEMISC 3:16
END OF DOCUMENT
Chapter
2. Actionable Conduct Under the Federal Civil Rights Acts
References
2:16. Retaliatory prosecution
Steinglass, Section 1983 Litigation in State Courts 3:9
Bodensteiner and Levinson, State and Local Government Civil Rights Liability 1:11
Law Reviews and Other Periodicals
Watson, Limiting a Constitutional Tort Without Probable Cause: First Amendment Retali-
atory Arrest After Hartman, 107 Mich. L. Rev. 111 (October, 2008)
Retaliatory prosecutions may be subject to remedy under 1983. In order to establish a
prima facie case of First Amendment retaliation, a plaintiff must demonstrate that (1) the
plaintiff's conduct was constitutionally protected; and (2) the plaintiff's conduct was a "sub-
stantial factor" or "motivating factor" in the defendant's challenged actions.[1] Where an of-
ficer attempts to punish a person for the exercise of First Amendment rights by filing a crim-
inal charge against him, there is a potential cause of action under the Fourth and First Amend-
ments.[2]
In Hartman v. Moore,[3] the Supreme Court held that a plaintiff in a retaliatory prosecu-
tion claim must plead and prove the absence of probable cause for the prosecution in order to
have a cause of action. Justice Souter's opinion for the Court argued that it is difficult to prove
that retaliatory animus caused a criminal charge to be brought, because the charge is actually
filed by a prosecutor, not the officer who is alleged to be engaged in retaliation. The absence
of any probable cause may help prove the link between the retaliatory animus of the officer
and the filing of the charge by the prosecutor, and so the Court held it is a required element of
a prima facie case. Justice Souter reached this conclusion even though he acknowledged that
the presence or absence of probable cause is actually not dispositive of whether a prosecution
was initiated for the purpose of retaliation. He reasoned that since probable cause will be rel-
evant to proof of causation in most cases, the law should make it a requirement in all cases.[4]
The decision will make it very difficult for protestors who are prosecuted only because the
authorities do not like their message to bring civil rights actions to vindicate their First
Amendment rights, if they were arguably violating some minor law during the protest. The
ruling may well bar their claims, even if the law in question was seldom enforced and would
not have been enforced against protestors whose message was acceptable to the authorities.
The Supreme Court has not ruled on whether the absence of probable cause is an element
of a wrongful arrest claim. An argument can be made that where multi-level causation is not a
factor, it is not necessary to prove an absence of probable cause to demonstrate a retaliatory
motive by an officer. The lower federal courts are split on whether a claim for retaliatory ar-
rest requires an absence of probable cause.[5]
[FN1] Abrams v. Walker, 307 F.3d 650, 654 (7th Cir. 2002) (abrogated on other
grounds by, Spiegla v. Hull, 371 F.3d 928, 21 I.E.R. Cas. (BNA) 577, 150 Lab. Cas.
(CCH) P 59878 (7th Cir. 2004)), citing Mt. Healthy City School Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471, 1 I.E.R. Cas. (BNA) 76
(1977).
[FN2] See cases cited in 2:28.
[FN3] Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006).
[FN4] See, Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010), cert granted on other
grounds, 131 S. Ct. 1678, 179 L. Ed. 2d 645 (2011) (plaintiff properly pleaded retaliat-
ory prosecution claim by alleging retaliatory motive and no probable cause; court notes
question of whether there is a constitutional claim for retaliatory investigation, but
grants qualified immunity because no such claim was clearly established); Beck v. City
of Upland, 527 F.3d 853, 862 (9th Cir. 2008) (with respect to First Amendment retali-
atory prosecution claims, previous case law describing factors that could rebut pre-
sumption of independent judgment by prosecutor are overruled in light of Hartman,
plaintiff need only show retaliatory motive on part of official urging prosecution and
absence of probable cause to rebut presumption of regularity and overcome defense of
independent intervening cause; with respect to Fourth Amendment claims, court notes
that Hartman may be inconsistent with previous law but does not overrule the latter in
this case because plaintiff overcame presumption of independent judgment by prosec-
utor under previous case law); Williams v. City of Carl Junction, Missouri, 480 F.3d
871 (8th Cir. 2007) (no showing of lack of probable cause for challenged traffic cita-
tions alleged to be retaliatory); Barnes v. Wright, 449 F.3d 709, 36 Envtl. L. Rep.
20100, 2006 FED App. 0187P (6th Cir. 2006) (applying Hartman).
[FN5] See Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011), petition for cert.
filed (U.S. Aug. 25, 2011) (declining to extend Hartman's absence of probable cause
requirement to a wrongful arrest claim), and cases and authorities cited therein.
POLICEMISC 2:16
END OF DOCUMENT
Home
Fighting Speeding and Other Traffic
Tickets
(Created 6/27/06; last updated 8/23/11)
Introduction
First of all, let me say right up front that I am not an attorney, and thus could not give
you legal advice even if I wanted to. It is recommended that you consult a competent
attorney before any court appearance. This page is intended as a resource that citizens
and attorneys alike may use to find sample motions, get ideas for strategies to fight traffic
and vehicular equipment tickets, and generally fight back against a system that has
become self-serving and abusive to its citizens. This site is not an authoritative source,
but rather a growing respository of approaches, strategies and motion documents with
empirical results. Your own state/county/city could have different laws, and will
definitely have different judges and motion forms as compared with those discussed
here. Keep this in mind; it is one reason why it's a good idea to retain competent legal
counsel before trying to fight your own traffic tickets. Likewise, be aware that if you use
this web site to advise another party, this may be considered the authorized practice of
law. In any case, the author of this web site shall have neither liability nor responsibility
to any party for any loss or damage caused or alleged to be caused by the use of the
information provided herein. Let me reiterate that, by providing this information, I am
not engaged in rendering legal services.
Why This Page?
Fighting Speeding and Other Traffic Tickets http://www.freeexistence.org/tickets.html
1 of 35 3/7/2012 10:11 AM
When I was 16, I fought a ticket in New York using the principles laid out in a "How to
Get Out of Speeding Tickets" article that appeared in a 1980's edition of the online
magazine Phrack. The strategies failed miserably, and I lost. I later learned that the
small town Claverack, New York court (led by a J ustice Gibbon, the "Gibbon" part being
far more representative of the man than the "J ustice" part) had abused its discretion in a
number of areas, including the judge writing in a corrected name, vehicle color, speed,
and license plate number on the ticket at the time of trial! All were initially incorrect;
years later, an attorney advised me the best strategy would have been to ignore the
summons that was mailed to me, since my name did not equal the misspelled name on
the summons, and my car was not the one described in the ticket; oh well, live and
learn). Anyhow, this site is an attempt to provide tried strategies along with their
outcomes. If there is a formulaic way to get out of any ticket, I have not found it, and I
suspect anyone who says they have is trying to sell you something. There is no magic
phrase that, when uttered to a traffic judge, will get you out of any traffic ticket. Each
state has its own loopholes and technicalities that may be taken advantage of, and it will
take some work to identify these. The strength of your case is up to you, and will
depend on how much work you put into it (although this is not to say that you cannot
win with a weak case that you did not have much time to prepare!) I am merely
providing the tools and assistance so that you may work more effectively, whether you
only have a couple of hours to spare fighting a ticket, or have many days to devote to the
effort. All I ask from visitors is that if they use the information here to successfully get
out of a traffic ticket, email me and let me know of your success. Likewise, if you filed
your own motion with good results, send me a copy with your name/address/case
number blanked out. This site will grow with member support, and hopefully we will all
learn how to more effectively fight traffic tickets. Information on this site is catered to
United States jurisdictions, but may have some relevance to other countries with legal
systems based on common law.
Note that many of my examples here relate to Colorado. I chose this state because its
state troopers are particularly abusive with regard to issuing massive numbers of speeding
tickets, and because Colorado court rules are very unfriendly to motorists making it one
of the most challenging places to fight a speeding ticket. If you can beat a speeding ticket
in Colorado, fighting an identical ticket in a state like New York is a breeze.
Be Proactive
The best way to get out of a traffic ticket is not to get it in the first place. If you get
pulled over, be courteous to the police officer. He might be pulling you over because
he's looking for a missing kid or because a vehicle similar to yours was just involved in a
hit-and-run accident, and he is using a trivial infraction (e.g., driving 8 mph over the
speed limit, too much window tint, etc.) Be nice and he may let you go once he sees
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you're not who he is looking for. Be antagonistic in the same scenario, and he might
decide to write you a ticket for that same trivial infraction. Of course, some cops do pull
people over and write tickets for driving 8 mph over. Unfortunately, it's hard to
differentiate the good guys from the jackasses until they actually hand you a ticket, so
until that point, remain friendly and courteous! Likewise, prior to receiving a ticket, do
not ask to see the officer's radar or laser gun reading, since this implies distrust of the
officer. And of course, don't incriminate yourself; when asked if you know why the
officer pulled you over, the correct answer is that you don't know, because in truth, you
really don't. Incorrect answers include "Because I was driving 90 in a 25?", "I'm not
sure, but please don't look in the trunk", or variants thereof. Do not apologize, and do
not mention that you didn't know what the speed limit was, because both of these types
of statements can be used against you in court later on.
If you're reading this after you were stopped, and you made an admission, be prepared to
explain it away in court. For example, if you get pulled over for going 75 in a 65 and
told the officer "I was going 70, tops!" then explain to the court that this was not an
admission of driving over 65, but rather a reflection of the fact that any speed
measurement over 70 was completely beyond your comprehension.
One dynamic that may affect traffic stops in your state is the "Click-It-Or-Ticket"
program. This program awards federal funds to local police departments in the form of
overtime pay which officers may earn by working extra hours enforcing seatbelt
laws. Unfortunately, if you live in a liberty-minded state where failure to wear a seatbelt
is not a primary offense (i.e., you can't be pulled over solely for not wearing your
seatbelt, but can be ticketed for it if pulled over for a primary offense such as speeding),
then you get an especially raw deal. Officers eager for more money will gladly take the
overtime, and proceed to pull people over for trivial infractions just so they can check for
seatbelt usage. Of course, even after they've verified that you are, in fact, wearing your
seatbelt, you'll still sit there for 15-45 minutes while they run your license and
registration. What you end up with is a feel-good federal program combining with state
policy that values individual liberty, with the perhaps unexpected result that drivers are
more likely to be pulled over for no good reason. Critics believe this program in its
current form incentivizes police harassment. At the same time, officers in such
jurisdictions who participate in this program are just as much to blame. In any case, you
may get pulled over simply as part of a seatbelt check; no point in turning an
inconvenience into a ticket by beginning the encounter with antagonism.
Also, be aware that the officer may confront you with some random, goofy stuff like
"You don't look like this picture on your license" or some comment on your vehicle and
its condition. If you look suspicious to the cop, chances are he is using these challenges
to try to get you to do something suspicious or volunteer something incriminating so he
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has probable cause (called "PC" in the law enforcement profession) to search your
vehicle. J ust give terse answers until the cop stops fishing and the conversation
advances. And never consent to a search, since this can only hurt you later (watch this
video for some tips on asserting your constitutional rights during a police encounter).
The Ticket
OK, so you got a ticket, known in many jurisdictions as a "summons and
complaint". The ticket is a "charging document" in that it charges you with an
offense. It contains lots of blanks that the officer must fill in, and thus has lots of
opportunity for error. If you find such an error, you can argue that the charging
document was insufficient, thus violating your due process rights.
The first thing you should do is look the ticket over. Is any information on the ticket,
including the location of the offense, incorrect? If so, you have a great chance at getting
the case thrown out. Even if the location is correct, is it outside of the officer's
jurisdiction (e.g., a sheriff's deputy from County X gave you a ticket in County Y, or on
some types of federal land)? Along similar lines, does the court of law listed on the ticket
have territorial jurisdiction over the location (e.g., your ticket says Court of Town X,
but the offense occurred in Town Y)? These are likewise grounds for dismissal. Also
look at the law you were alleged to have violated. Is there a statute number? If not, you
have a good shot at dismissal. Visit a local law library (you'll find them at law schools
and/or your local county courthouse; many states also have their statutes online,
Findlaw.com is a great place to start looking for your state's laws) and look up the statute
to make sure the statute number/section/paragraph cited is correct. Did the citation on
the ticket exactly match a statute? If not, you can move (a.k.a. motion when used as a
verb) for dismissal. (This is useful because older cops will often cite obsolete statute
numbers out of habit, especially during off-hour shifts.) Did the officer sign the
ticket? If not, it is arguable that you were never charged. If the officer used block letters
instead of cursive in the signature, you can discover or subpoena his pay records to see if
he normally signs things in block letters. This goes to prove intent; if the officer normally
uses cursive but on your ticket simply wrote his name, you can often get the ticket
dismissed. One other point worth knowing is that many police agencies do not allow
off-duty, out-of-uniform officers to issue citations for traffic infractions (e.g., see Denver
RR-304). Generally, off-duty officers who witness serious or flagrant violations must
summon on-duty personnel to execute a stop of the violator, or must confer with an
on-duty supervisor to obtain approval prior to issuing a citation or arresting the
violator. If an off-duty cop attempts to ticket you, challenge him on this; if that doesn't
work, use it as a grounds for dismissal in court!
Errors on your ticket represent procedural issues, and are a great thing to focus on in
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court. Why? Because procedural errors in your charging document don't require a lot of
factual support (the ticket says what it says, you don't need witnesses or testimony or
cross-examination to establish the content of the ticket), and the issues are usually
relatively clear cut. Often the officer will simply admit the error, and then you're left
only to argue the legal side of things. When dealing with factual mistakes on the ticket,
it's important to remember that as a defendant in court, you need only show that you
didn't commit the specified crime at the specified time, specified place, in the specified
manner, and while driving the specified vehicle specified on the ticket. If any of those
elements were recording incorrectly on the ticket, you've got a strong case for dismissal,
or at least a verdict of Not Guilty. (Even if you committed a very similar crime several
blocks away, or the next calendar day, or in a vehicle other than the one specified, that
would be an entirely different matter, and not the specific offense you have been charged
with.)
Note that more minor mistakes, e.g., listing your car as black when it is actually dark
blue, are less helpful, but can still be of some use. See the section on cross-examination
below.
The Aftermath
If you got a ticket, don't let it ruin your day. The average traffic ticket is simply a form
of taxation of drivers which is randomly applied. If the government really didn't want
you speeding, they'd require speed governors on cars or have criminal penalties for minor
speeding infraction. In summary, your local government depends on traffic ticket
revenue, and wants you to speed so they can continue to earn revenue from you. It's that
simple. Don't take it personally, and remember that you don't need to take it lying down
either.
TRAFFIC COURT
Just What is Traffic Court?
Traffic court is a strange mix of the two wings of the justice system, that is, civil law and
criminal law. When you got your driver's license, you signed a contract with the state
wherein you agreed to abide by the state's rules in exchange for the "privilege" of driving
on its roads. Thus, when you violate that contract, say by exceeding the speed limit by
15 miles per hour, the state can come after you for a civil penalty in the form of a
monetary fine. More severe violations, like exceeding the speed limit by 50 miles per
hour, transcend your contract with the state and begin to approach doctrines of criminal
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law like reckless endangerment. Now you may be in the realm of misdemeanors or even
felonies, with fines turning into jail time.
Okay, So What Does This Mean?
Traffic courts nationwide represent what many legal critics call "Supermarket J ustice",
geared more toward getting through a large volume of cases and collecting your money
than dispensing justice. The fundamental rights guaranteed to the accused in other
criminal cases fall by the wayside; good luck getting a public defender, a jury of your
peers, or even a stenographer, in traffic court unless you're there for a felony (this policy
would seem to reward felons for committing more serious vehicular
crimes!) Fortunately, traffic courts nationwide have another thing in common: these
systems all try to separate you from your money as expeditiously as possible, and in
doing so rely on the average driver's ignorance of the law. In some states, it is easy to
take advantage of this weakness; in New York, for example, you can request what is
called supporting deposition (a statement of facts surrounding the violation that the
officer must write before the court date). If the supporting deposition is not written, you
can request that the case be dismissed. Likewise, if the officer does not show up to
court, the state has no witnesses against you, and you can likewise ask the judge to
dismiss your case. (In very small towns, the judge may have a vested interest in bringing
your money the town coffers; in such a place, you must ask quite forcefully, although
keep a civil tone as you can be jailed for contempt of court if you are openly
disrespectful of the judge.) Most drivers who show up to traffic court are not aware of
their rights, or do not stand up for themselves because they are afraid of getting in even
more trouble if they put up a fight; I have seen many drivers be cowed into taking a plea
bargain instead of motioning for dismissal, or even worse, agreeing to schedule a new
court date to a time convenient for the absent officer! Remember, an officer who misses
a court appearance or does not submit required paperwork is not only wasting your time,
he is wasting the court's time; a sign of an objective traffic judge will be that he shares
your consternation with the officer in question. Also note that some states have a legal
requirement that charges be dismissed if the officer fails to appear (e.g., see Rule 10
of the Colorado Rules for Traffic Infractions, Title 15, Chapter 1, Subchapter I.124.9 of
the NYCRR in New York, etc.) If any requirement like this exists in your jurisdiction, be
sure to print out the relevant rule or statute and bring it to court so you can cite it with
confidence to the judge. If no such rule exists, tell the judge "I respectfully motion to
dismiss for lack of sufficient evidence." Be aware of your rights, especially your right to
remain silent (said silence cannot be used against you to establish guilt).
Note also that you might have friends, relatives, or a spouse who can't understand why
anyone would bother fighting a ticket. "J ust pay it," they exclaim, "it's easier than
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fighting it and you'll just lose anyway!" This passive, "go along to get along" attitude is
what allows the traffic fine system to thrive in its present state. In contrast, if even half
of licensed drivers fought every traffic ticket they got, the police wouldn't bother pulling
people over for trivial crimes, because it just wouldn't be a profitable
endeavor. Remember, if the founding fathers had had such a passive "grin and bear it"
attitude, America would probably still be a British colony. By fighting a ticket, you're
merely requiring the government to live by its own book of rules (the fact that this book
of rules is quite extensive and full of technicalities which may help you is merely a
bonus).
The strategies enumerated on this page are equally applicable to urban courts with
full-time, career judges as they are to small-town courts (I literally had one case in
upstate New York where the court was in the judge's living room; his wife was the
"clerk" and held the cashbox! The mockery of justice that these courts represent have
been around for a hundred years... they are so old that FDR tried, unsuccessfully, to
abolish them when he was governor of New York!) In the second situation, you'll just
have to take a more active role in educating the judge on state law and your rights. Your
rural judge or justice probably only serves this role for 1-2 hours a week, and has a day
job which has nothing to do with the legal profession, and your pointing out a law might
be the first he has heard of it. Note that just because you've got a career judge in a big
courthouse does not mean you are guaranteed a fair trial. For example, Larimer County,
Colorado, has a large number of career judges and is based in a $26 million facility, but
its county and district courts are among the most corrupt in the state. I'll be posting
documents related some of their antics as I get them, but they include magistrates
blatantly lying to defendants, frivolous motions systematically filed by the district attorney
to prevent defendants from appealing (behavior which the judges refuse to sanction), and
a severe bias against defendants in all traffic cases.
You needn't be nervous about making a court appearance. As long as you do not lie or
insult the judge, the worst that can happen is that you have to pay the fine on your ticket,
and possibly an additional $10 or so in court costs. And given the salaries of the judge,
clerks, bailiffs, courtroom security, cop, and other court personnel, believe me, this $10
is a bargain -- by going to trial, you are easily costing more money than it stood to make
from your fine. And remember, this is the worst-case scenario, because if your case gets
dismissed, you pay neither the fine nor court costs.
One-Stage vs. Two-Stage Trials
Two types of traffic courts are prevalent in the United States. The first type uses a
one-stage trial, wherein you show up to court, enter a plea, and if that plea is "Not
Guilty", a hearing then takes place immediately after. New York has this type of a traffic
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court system. One advantage of this single-visit system is that most people who show up
are just looking for a plea bargain, and so many times the police officers who issued the
tickets will be complacent about showing up, thus giving you reason to ask for
dismissal. A disadvantage is that you do not know how good a plea deal you will be
offered until you show up to your sole hearing. So if you're not sure whether you want
to accept a plea bargain, you'll probably need to prepare your defense in advance of the
hearing in case the deal isn't worth taking. Note that in a two-stage trial, you may be
offered a first plea bargain offer upon your first appearance, and a second, more
generous plea bargain offer by the officer (who is not happy about having to be there on
his day off!) upon your final hearing. In this case, it is advantageous to plead "Not
Guilty" at your first appearance, however you want to be sure that this is the policy of the
prosecutor or issuing officer's police department before relying on it. In some
jurisidictions, may have to pay another $10 or so in court costs just for causing things to
advance to the final hearing stage even though nobody was sworn in or gave testimony.
In a two-stage jurisdiction, it is generally advantageous to gather as much evidence as you
can prior to your first appearance. For example, try to obtain speed studies (also called
traffic engineers' surveys) prior to your arraignment. If you show the assistant district
attorney evidence that the speed study was problematic, you are both demonstrating your
willingness to aggressively defend yourself, and showing the DA that there may be
problems with his case. In either case, the DA will likely want to be rid of you, and may
offer you a more attractive plea bargain than he otherwise would have. Note that in
some jurisdictions (where supermarket justice has been elevated to an art form), plea
bargains are determined solely by a table of reductions used by the court clerks. If you
are in one of these places, your sole opportunity for back-and-forth plea negotiation will
be with the officer who issued the ticket. This puts you, the defendant, in a tough
spot. You could plead not guilty and hope for a favorable plea bargain to be offered
before the trial. But if the cop doesn't like you, or doesn't understand your argument
(e.g., lacking legal training, he may not appreciate how much a given procedural error
may weaken his case), you may not ever get a viable plea offer, and thus could be left at
the last minute with no option but to go to trial.
Other states use a two-stage trial. In the first stage, you show up to the court on the date
cited on the ticket. When you show up at court, you'll be given a chance to enter a plea,
and probably be offered a plea bargain. This first court appearance is called an
arraignment (also known as a "first hearing"). In some states, you appear before a
judge for the arraignment, and thus probably ought to try and look respectable. In other
states, you simply interact with a clerk at a walk-up window, and thus needn't bother with
pleasantries like a tie or even bathing. Note that Colorado uses this type of traffic court
system, and to maximize the inconvenience to you, the ticket-fighter, Colorado rules
require a personal appearance by you or your attorney simply to enter a plea. Note that
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in most places, entering a plea can be done by mail.
Pleas and Plea-Bargaining
A plea is defined by Black's Law Dictionary as an accused person's formal response of
"Guilty," "Not Guilty," or "No Contest" to a criminal charge. The Guilty and Not Guilty
pleas are self-explanatory. However, be aware that it is perfectly legal to plead Not
Guilty to a traffic violation that you really did commit. There is nothing wrong with
forcing the state to present its case against you!
No Contest (a.k.a. nolo contendre) is a plea which neither acknowledges nor contests
guilt. Advantages of the No Contest plea are that they may not be used against you in a
subsequent civil case (e.g., if you are accused of running a stoplight and hitting
somebody, pleading No Contest will resolve the case and allow you to be fined or
sentenced without giving the victim ammunition against you in a personal injury
case). No Contest pleas can sometimes be used to get a more lenient sentence from a
judge than would be gained after fighting a losing battle in court. Another application for
a No Contest plea is when you want to admit that you were speeding, but have a really
good excuse (e.g., medical emergency) and want to throw yourself on the mercy of the
court. To accomplish this, you would enter a plea of No Contest, and ask the judge for a
right of explanation. You would then explain the extenuating circumstances, and ask the
judge to withhold adjudication (or suspend sentence, depending on your jurisdiction) in
light of the circumstances. Note that in some states (e.g., Colorado), imminent harm
(such as a medical emergency) is an affirmative defense to speeding. In such states,
you'll probably want to plead Not Guilty, and use the affirmative defense, rather than
plead No Contest.
Plea bargaining refers to the process by which the state offers you a decreased fine,
decreased number of points, or other break in exchange for pleading guilty to a lesser
charge (e.g., a 4 point Speeding ticket may be plea bargained into a 3 point Failure to
Obey a Traffic Signal charge). In some jurisdictions, the officer who issued the ticket
offers the plea. In other jurisdictions, assistant district attorneys or their minions will
offer the plea. View plea bargain offers with a high degree of skepticism! I once had a
New York State Trooper offer to "reduce" a "Speed Unreasonable" charge into "Failure
to Obey a Traffic Signal" charge in exchange for pleading guilty. It turns out the fines
and points for the two charges were identical. Fortunately, I turned down the plea deal,
and ended up getting the case dismissed because the Trooper forgot to write a supporting
deposition (discussed above). To frost the cake of that court appearance, the judge
berated the Trooper for wasting the court's, and my, time. I drove (well actually, sped)
home feeling gratified.
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Beware of Police Intimidation Tactics! Less honest police officers (especially state
troopers) will try to deceive you in an effort to dissuade you from going to trial. Here is
a sample script I've seen New York State Troopers use on people who show up to fight
their tickets:
Trooper: (Friendly I'm-doing-you-a-favor tone) Hi, I'm Trooper Smith. Trooper J ones,
who wrote your ticket, is running late. I just spoke to him on the radio, and he won't be
getting to the court for another hour. He did authorize me to offer this plea bargain on
his behalf...
Soccer Mom: Oh... I don't have that kind of time, I have to go pick up my kids at
school. Darn, I wasn't even speeding, either. But I guess I'll just take the plea bargain,
I've already wasted enough time on this...
(Soccer Mom accepts plea; Trooper Smith turns to me) Trooper: So, you probably
heard about Trooper J ones running behind. He authorized me to make this plea deal...
Me: No thanks. I can wait an hour.
(At this point, Trooper Smith disappears to his car, allegedly to check on how Trooper
Jones is coming along. After several minutes in his cruiser, he comes back in)
Trooper: Actually, it's looking more like it's going to be two and a half hours until
Trooper J ones can get here and your hearing can start...
Me: (Cheerfully) That's fine! I've got all day.
Upstate New York Justice (who has been watching this charade all along without
interceding): Well, I don't have all day. We'll have to reschedule.
Me: Your honor, I don't have any room in my schedule for a further hearing. I'm afraid I
have to move for dismissal.
(Dismissal was granted; if Soccer Mom had seen through this technique, she too could
have had her ticket dismissed!)
The moral of the story is don't take legal advice from the cops in the courtroom. Despite
how friendly and/or helpful they may seem, they did not come to court to help
you! They are there because they chose write someone in the courtroom a ticket, and
now they want to make sure it sticks!
CLERKS (No, not the movie!)
The court clerks are your friends. If they are not, then they should be! The clerk's office
is in charge of scheduling trials, processing motions and subpoenas, etc. If you are nice
to them, they will often try to help you with scheduling flexibility, information, or
advice. Take such advice with a grain of salt, of course, because clerks are not experts
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on the law. Nevertheless, whenever a clerk informs you of a deadline or a procedure,
make notes on what you were told, by whom, and the time and date. J udges will often
be more forgiving of a procedural error on your part if you can point to misinformation
given to you by the clerk's office (I once had a motion to set aside a default judgement
granted after the statutory limit for such a motion had passed because I was able to point
to misinformation given to me by the clerk's office, and an unreturned phone call to the
same office). If you need something from the clerk, and just aren't getting any
cooperation, see if there is a J udicial Administration office to which the clerk's office is
ultimately accountable, and consider seeking assistance there.
Whenever you file any document with the clerk's office, bring an extra copy of the
document with you, and ask the clerk to stamp it. This stamped copy serves as your
proof that you filed the document. If you file a document and do not get this proof, and
the document is lost, so are your legal rights associated with that document!
PRE-TRIAL MOTIONS, AND IDENTIFYING YOUR OPPONENT
A motion is simply a request (usually written in the case of pre-trial motions, or oral if
you're already before the judge) for the court to decide on something. There are a few
important things you should know about motions. First, expect lots of back-and-forth on
any motion you file. Your traffic court judge will probably resist any but the most
customary motions you make. Unfortunately, your typical traffic court judge is more
interested in facilitating the transfer of your hard-earned money to the local government
than in justice or objectivity. In jurisdictions where the police officer who wrote the
ticket represents the prosecution (instead of, say, an assistant district attorney), your
opponent is probably the judge. The officer will likely know very little about judicial
rules, important cases, and traffic case jurisprudence. You might think this would present
a strategic advantage for you, but chances are, the judge will step in and do the cop's
legal research for him. Try making a motion of any kind, and watch as the officer stands
idly by; the judge will be left to come up with reasons why your motion should be denied
on behalf of the cop, and then will proceed to rule on the objections the cop never
made. As you might imagine, any justifications the judge comes up with on his own are
probably more compelling to him than whatever you came up with!
If your motion gets denied and you think it unfair, or think the judge missed something,
then file a Motion to Reconsider Defendant's Motion for X, where X what you
motioned for initially. If the prosecution files a motion, you argue with it by filing a
Reply to Peoples' Motion. You can argue with the prosecution's reply to your motion by
filing a Surreply to the Prosecution's Reply, a Surreply to Prosecution's Surreply, and so
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on. If you'd like to bring up a motion for the second (or tenth) time, perhaps after new
evidence or argument has been offered which strengthens the case for such a motion,
then you can Renew your motion any time up through the end of the trial (because you
can't generally make a new motion for the same thing).
Some motions must be filed pre-trial or you will lose your right to make the
motion. Check your local judicial rules to be sure, but these types of motions usually
relate to a lack of jurisdiction over you (personal jurisdiction) or the case (subject matter
jurisdiction, such as errors on the charging document (a.k.a. the ticket/summons), or
violation of your right to a speedy trial). J ust to be safe, you always want to present
these types of Motions for Dismissal right up front (personal jurisdiction first, followed
by subject matter) before any testimony is offered!
Of course, you can also motion during your trial. If your issue is fairly complex and
could involve harmful precedent the judge is apt to discover if he looks deep, it may be
best to make such a motion during the trial so the judge has less time to dig around and
do research! But if it's not advantageous to catch the judge and/or prosecution off-guard,
then you might as well file the motion in advance -- you might succeed, and save
yourself a trip to court!
Sometimes, you may find yourself in a situation where the judge has ignored a pre-trial
motion you filed. This can be a tricky situation and can require some tact to resolve. In
some cases (e.g., Motions for Post-Conviction Review) there is a statutorily-specified
deadline by which a court must rule on the motion. If you don't get a response within the
specified period, you can petition the court above the one you're currently in for a writ of
mandamus. These types of motions are rarely filed, perhaps partly because they tend to
piss off the judge (as with many government employees, judges often respond poorly to
being asked to do their job; of course, by seeking mandamus, you are giving up on the
judge and appealing to, essentially, his or her boss to force action). As such, they are
generally used only as a last resort. For an exemplary Petition for a Writ of Mandamus
which resulted in an immediate and favorable ruling, click here. :Note that the standard
for issuance of such a Writ is high; the judge must have a legal duty that has been
neglected.
In a case where there is no statutory time limit for having your motion ruled upon, the
best approach may be a very friendly and polite call to the court clerk's office. Often, the
judge has simply forgotten about the motion, and having a court clerk approach them to
ask when a ruling might be expected will result in that ruling being issued in very short
order!
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DISCOVERY
Your Right to Discovery
As with any court case, pre-trial discovery can be a powerful tool in fighting a
ticket. Discovery is defined by Black's Law Dictionary as "compulsory disclosure, at a
party's request, of information that relates to the litigation". Generally speaking, pre-trial
discovery is intended to give you access to the government's evidence against you. This
access is necessary for you to prepare your defense. Practically speaking, a motion for
discovery is used to gain access to pieces of evidence which may be used to find
weaknesses in the opponent's case. Most states are obligated to comply with any
reasonable discovery requests you make. Note, however, that there are some exceptions
to this. For example, Colorado goes the extra mile in denying basic legal rights to
motorists with Rule 8 of the Colorado Rules for Traffic Infractions, which disallows
discovery prior to your hearing. But you have no actual right to examine the evidence
against you before deciding how to plead! In such a case, you can go to the police
agency that issued the ticket and try to request the documents. Do so well in advance of
your hearing! Some jurisdictions will not allow you access to original documents, and
you will have to wait for a government employee to find and copy the requested
evidence. You may have to pay for these copies, which is unfortunate since you will be
paying for document copies before you even know if the document helps your case. In
some particularly abusive jurisdictions (e.g., Larimer County, Colorado) you can be
charged $7.50 for something as simple as a one-page photocopy of the officer's copy of
your ticket! Not only does this system help to dissuade people from standing up for their
rights by denying them immediate or direct access to relevant documents in the case
against them, but it also makes a tidy profit for the county sheriff even if you win your
case. If course, if you're pretty sure you want to go to trial, and are comfortable
examining lots of evidence quickly, you could file a subpoena duces tecum which, while
not really pre-trial, force the officer to bring all the records you request with him to court
for your examination (see below). Be aware that some law enforcement agencies have
rules requiring officers who receive subpoenas to make a court appearance (e.g., see
Denver RR-502). It is often unclear how much enforcement of these rules
exists. However, if you live in a place where officers frequently blow off court
appearances for traffic infractions, this may affect your decision to file a subpoena.
To further confuse things, Rule 216 of Colorado Municipal Court Rules of Procedure
does allow for discovery. What does this mean? Essentially, if your Colorado ticket was
written within city limits, you have a right to conduct pre-trial discovery, but if the ticket
was issued within unincorporated county land, you cannot. Determine what discovery
rights are available in your locality before you spend time on any discovery requests. If
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you are unable to make this determination, then at the very least submit your discovery
motion as early as possible so you are not surprised at the last minute by a lack of access
to evidence.
Note that it is illegal to file a motion for discovery for large numbers of documents purely
to inconvenience your opponent. Our goal here is simply to find out all the facts relevant
to our case. You're going to have to miss work or sacrifice some family time to fight this
ticket, and may have to pay a fine, so don't feel bad about standing up for your
rights. The fact that a lengthy discovery request could cost the government more money
than they stand to collect from you if found guilty of the traffic violation is not a
legitimate reason for filing a discovery motion; rather, it is simply an added bonus. Note
that whenever you file a motion, whether it be for discovery or anything else, always
bring a second copy to the clerk's office and have the clerk time-stamp the
copy. Without this time-stamped copy, you have no proof your motion was ever filed
should the clerk lose it!
Each section of traffic code has its own associated factual and evidentiary
elements. These elements might be something for which you should file a motion for
discovery (e.g., battery replacement records for a tint meter unit), or simply something
you should look up (e.g., state standards relating to paint and reflector types used to
signify a no-passing zone; at least one California passing-in-a-no-passing-zone ticket has
been defeated due to improperly spaced reflectors on the center line!)
What to Discover
With just about any type of ticket, it is worth filing a motion for discovery ofall the
following:
The officer's notes (the officer's copy of the ticket often has a space for he or she to
make notes relating to the incident; these notes will not appear on your copy)
Log book of the officer for the day of the violation (how long was the officer
working that day? was he fatigued after a long shift? did he just finish giving
another ticket across town, and thus was rushed or could not possibly have gotten to
your location in the given time?)
A detailed map of the enforcement jurisdiction of the police department that issued
the ticket - if it turns out the officer was outside of his jurisdiction when your ticket
was issued, then your day just got a lot better
The citation issuance policies in effect for the police department on the date of your
alleged violation
Demographics of people stopped, and of people cited by the officer during the past
six or twelve months, including, but not limited to, race, ethnicity, age, gender, and
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the type of car being driven by the person stopped
The officer's physical test results regarding vision test data
All other relevant evidence regarding the officer's ability to make sound judgments,
or any accusation of misconduct
All other relevant evidence regarding the summons and complaint
What to Discover: Speeding
With a speeding ticket, it might be worthwhile to add some or all of the following to your
motion for discovery:
Radar/laser device make, model, serial number, options, and age
The radar/laser device operator manual and specifications
Radar/laser device calibration certificates and calibration log sheets for the year
before the violation (and months following if available)
All other maintenance and repair history of the radar/laser device
Failure and error rates of the radar/laser device
The officer's certificate of competency
Records relating to the training received by the officer regarding the use of the
radar/laser device including including dates, location, and instructor name and
address
The training materials used by the officer when training on the radar/laser device
Date that the officer first used the radar/laser device
The speedometer deviation records for the vehicle the officer was driving since
officers commonly use their own speedometer to verify the confirm the accuracy of
the radar/laser device reading
Information relating to the educational background of the officer to determine
whether he possessed the requisite skill necessary to properly make detailed
measurements based solely upon visual observation; this visual observation is
commonly used to verify the accuracy a speed measurement device result
Some more general information is also of interest, such as departmental, local, state
policies pertaining to radar/laser speed measurement device use
Radar only: FCC Public Safety Radio Services license (this license is typically good
for a few years; alternatively, if the unit is unlicensed, it was being operated
unlawfully). Note that at least web site I have come across indicates that, under Part
90 of FCC rules, a police agency with an FCC license for a communication system
does not need a separate license for a radar unit. I have not yet verified this.
Radar only: Radar guns are calibrated using tuning forks, which themselves must
be calibrated. So you should add calibration records and log sheets associated with
the tuning fork(s) used to calibrate the radar detector that clocked you. In some
states, case law dictates that the fork must have been initially calibrated before
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introduced into service, and also calibrated less than a year before or after it was
used to calibrate the radar detector (see, e.g., People v. Walker, 610 P.2d 496
(Colo.1980), and People v. McIntyre, 719 P.2d 727 (Colo.1986)). Moving mode
radar (that is, radar capable of taking measurements from a moving police vehicle)
requires more than one fork, so keep this in mind when making your discovery
motion or writing up your subpoena duces tecum (see below section on subpoenas).
Click here to download a sample discovery motion that was used by one reader to fight a
speeding ticket in Colorado. I selected this one because it's the most thorough example
I've come across.
What to Discover: Window tinting
With a window tinting ticket, it might be worthwhile to add some or all of the following
to your motion for discovery:
Manufacturer and model of the tint meter device used by the officer in conjunction
with the ticket
Date of purchase of the tint meter device
All maintenance records regarding the tint meter device
Date that the officer first used the tint meter device
The instruction manual provided with the tint meter device
The training manual provided with the tint meter device
Records relating to the training received by the officer regarding the use of the tint
meter device including including dates, location, and instructor name and address
Information relating to the educational background of the officer to determine
whether he possessed the requisite skill necessary to properly make detailed
measurements based solely upon visual observation
Calibration test results for the tint meter device during the six months prior to the
date of the violation, and months following if available
Battery replacement records for the tint meter unit
All other maintenance history of the tint meter device
Failure and error rates of the tint meter device
Click here to download a sample discovery motion that was used to fight a window tint
ticket in Mountain View, Colorado. It's a pretty good example of just about every piece
of information that could help you in court.
To file your discovery motion, you'll need to give it to the clerk at whichever court is
listed on your ticket/summons. If you don't have your case number (generally not
printed on traffic tickets), you can get it from the clerk and write it in at the time of
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filing. Remember, always bring an extra copy of any court filing and get it stamped
by the clerk to prove it was filed in case it later "disappears" from the court's files.
Discovery: The Prosecutor's Response
The "People" (also known as the assistant or deputy prosecutor) will generally respond to
your motion for discovery and employ two strategies to limit your pre-trial access to
information. The first is objection: the prosecutor will often argue that one or more of
your requested items is "irrelevant" and/or "unduly burdensome". You'll generally want
to file a counter-response which argues that the information you've requested is
absolutely relevant to some important set of issues or facts, and you'll want to cite those
issues/facts. Likewise, argue against "unduly burdensome" objections by arguing that the
"probative value" (the value of the evidence to prove something) far outweights the
burden to "the People".
The other strategy the prosecutor will use is to not actually object, but to agree to do
something which doesn't actually provide you with pre-trial access to the evidence against
you. For example, you'll file a motion for discovery of records relating to the officer's
training on a given speed measurement device, and the prosecutor will respond with
something like "No objection. Officer will testify to these matters as part of the People's
prima facie case." Don't stand for this; the purpose of pre-trial discovery is to have
access to the evidence against you before the trial. The idea that the officer's testimony
after the trial has begun somehow satisfies your discovery request is absurd. If the judge
sides with the prosecutor, insisting that the requested data can only be transmitted via a
narrative from the ticketing officer, then demand the right to depose the officer before
the trial so you can know the evidence against you that will be presented in trial. During
deposition, ask the officer questions just like you would during a cross-examination. Mix
up the question ordering, and non-consecutively repeat inquiries using different phrasing
to encourage contradictions or other slip-ups. And remember: every minute the officer is
sitting in that room answering your questions, he's not out giving tickets, and thus the
government is losing additional ticket revenue as a consequence of the prosecutor's lack
of cooperation. (Note that the previous comment does not apply to cross-examination,
since there, the judge and possibly a jury are observing, and if it appears you're wasting
their time with meaningless or barely-relevant questions, they can and will punish you!)
No Right to Discovery?
As noted above, some particularly draconian jurisdictions (e.g., non-municipal courts in
Colorado) forbid pre-trial discovery. If you live in one of these places, all is not
lost! The Freedom of Information Act (FOIA) and its state-level equivalents are often
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tremendously useful when fighting the government in any court case. In many states,
filing an FOIA request may be more fruitful than filing a motion for
discovery. Why? With discovery, the opposition can refuse to furnish evidence by
arguing that it is irrelevant, unduly burdensome to produce, or other such
reasons. Perhaps even worse, the government can agree to the request but then furnish
only a small, irrelevant subset of evidence you request. Either way, you've got to fight to
convince the judge to grant you access to the evidence. In contrast, government agencies
usually do not have these "outs" when responding to FOIA requests. You'll want to
check your state's FOIA laws, but some states give FOIA requesters an amazing amount
of latitude when requesting government documents. For example, in California, the
courts have established that "idle curiosity" is sufficient grounds for any citizen to make a
request under the California Public Records Act (CPRA). Further, if a government
agency turns down your request and you successfully sue to force compliance, the
agency must reimburse your legal expenses! The CPRA is not unique in the latitude that
it grants its citizens; check your state's FOIA-equivalent and you may be surprised to find
out just how much power you have to access government records.
The easiest way to file an FOIA request is using this automatic request generator on the
RFCP site. Simply select your state (or use the federal form if you are fighting a ticket
from a National Park or other federal jurisdiction), fill in the form, and paste in the
evidence you wish to see (see the exemplary discovery request items, above, for some
suggestions). Remember that an FOIA request is technically not connected to your trial;
as such, do not mention "discovery" in your request or it will just cause confusion. Also,
file your FOIA request as early as possible since the police agency may, by law, take a
considerable amount of time to get back to you -- check your local FOIA law to learn
more about the possible timeline -- and the court may be unwilling to grant you a
continuance while you wait for the FOIA request to be processed.
Worst case, if your local FOIA laws are limited in scope (see the RCFP Open
Government Guide for state-by-state FOIA rights and restrictions), you can subpoena the
officer who issued your ticket and make him bring the evidence you seek with him on
your court date! This has some obvious disadvantages over pre-trial discovery, namely
that A) you won't get to see the evidence until your trial, B) the officer may be more
likely to show up to court since you subpoenaed him, making a dismissal for failure to
show up less likely, and C) you will probably have to pay for the officer to be served
with your subpoena.
The reason for C) above is that, while process serving requirements vary from
jurisdiction to jurisdiction, one common denominator is that the person who serves the
document must be an adult who does not stand to gain regardless of how the trial
goes. So barring additional restrictions in your jurisdiction, you can have a friend serve
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the officer with your subpoena, but you (or a family member) could not. Note that many
sheriff's departments offer service of documents for a nominal fee (usually around $10),
and that State Troopers are not affiliated with the sheriff and thus can served in this way!
Requesting that the officer bring evidence with him requires a special kind of subpoena
known as a subpoena duces tecum (duces tecum means, literally, "bring with
you"). Here is a sample subpoena duces tecum that one reader used to fight a ticket in
Larimer County, Colorado. It has a different format than a discovery motion, but the list
of documents being requrested is essentially the same. Check with your court clerk to
make sure, but generally you'll need to make two copies of your subpoena. One gets
stamped by the court and served to the officer, while the other is kept on file by the
court.
In many jurisdictions, the courts have defined a subpoena duces tecum as " an order to
produce documents or to show cause why they need not be produced." If the cop in
your case shows up without the evidence you subpoenad, insist that he make a showing
why they need not be produced!
THE TRIAL
The trial (sometimes called the "final hearing") is where all your preparation comes
together. Here is where technicalities will be exploited, or failing that, you will cross-
examine the cop who issued your ticket. Now, the question often arises as to where you
draw the line when making arguments. For example, it's quite conceivable that you'll
want to make an impassioned plea about your due process rights being tramped as a
result of an incorrect license plate digit on the citation. But arguing for a trial-
by-combat* is probably over the top. The standard that is taught to future litigators in
most American law schools is that of the "straight-faced argument". More formally, the
attorney has a duty to make any and all arguments on behalf of his client, only
withholding such an argument if it is so patently absurd that he cannot present it to the
court with a straight face. I think that is a great standard to use in traffic court; your
medical, insurance, and consumer product bills are all higher as a result of this rule being
taken to the extreme in tort cases, so you might as well use it to your advantage in this
one case.
* Arguing for trial-by-combat, while certain to fail, does have a legal basis in some
jurisdictions. For example, when Colorado became a state in 1876, it adopted the British
common law as it stood in the year 1607 (see C.R.S. 2-4-211). However, trial-
by-combat was not eliminated from British common law until the 19th century, and since
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it was never "repealed by legislative authority" as CRS 2-4-211 requires, technically you
still have the right to challenge the prosecutor to an all-day quarterstaff smackdown
wherein the last man standing wins his case. Remind you of Thunderdome? (Note: if
you make this argument, please email me a full account and I'll post it here. I may try it
myself next time I get pulled over by the Colorado Troopers just to watch the juducial
wheels turn, although in this day and age I fear it may be construed as a death threat.)
Important note: Read this Wikipedia section on binding vs. non-binding (a.k.a.
persuasive) precedentsbefore you begin your legal research, and review it before your
trial. &nsp;It's important to understnd the role of each type of precedent, and
inappropriately citing a non-binding precedent is a rookie mistake which may significantly
lower the judge's opinion of your legal reasoning.
Quick tip: if you're ever asked whether you have any more questions for the judge, any
more exhibits to enter, any additional comments you'd like to make, etc., never say
"no"! That's far too absolute an answer, and may lead to the judge ending your trial
before you're done. Always respond with "not at this time" to keep your options open
later.
Standards of Proof
In many jurisdictions, the standard of proof for civil violations (e.g., lesser speeding
tickets where jail time isn't an issue) is a preponderance of the evidence. This means
that the judge need only be 51% certain of your guilt to convict you of the charge. The
right to this higher standard of evidence is another area wherein your basic rights have
been thrown to the wolves to make traffic court a more efficient and profitable endeavor
for the state. For felonies, the standard is beyond a reasonable doubt, wherein the
judge or jury must be approximately 90% certain of your guilt. Here we again see that
those traveling at feloniously high speeds are rewarded with additional rights in court!
Of course, it would be naive to think that, in a matter of your word versus that of the
police officer, that the judge will not believe the officer over the defendant. This is why
testilying is such a powerful and widely-abused practice. This is also why bringing in
police records, your own photographs, affadvits from friendly witnesses, and printouts of
statutes is so crucial as such documents often have an inherent credibility that you, as a
nervous first-time defendant stammering before the podium, will not.
But I Didn't Know the Speed Limit/Didn't Intend to Speed!
Saying one of the above phrases to the judge is probably the most common error I have
seen defendants make. Why is it a mistake? Well, first, it doesn't help you at
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all! Speeding is generally a strict liability offense. This means that you may be found
guilty of it regardless of whether the offense was intentional, and regardless of whether
you committed the offense knowingly! Second, bringing this up in court (or in front of
the officer when you get pulled over) is a very bad idea because it implies guilt. It can
obviously be challenging to confidently present a defense that you were not speeding,
when at the time you were pulled over, you weren't even aware of the speed limit.
The police will tell you that "ignorance of the law is no excuse." However, this isn't
completely true. Ignorance by itself won't get you out of a ticket, but but many state
DOTs (Departments of Transportation) and the Manual on Uniform Traffic Control
Devices (adopted by many jurisdictions) require a speed limit sign matching certain
specifications to be present when, say, the speed limit is reduced for a section of
roadway. As a result, if the signage is improper or completely missing, you can argue
that the reduced speed zone did not meet the notice requirement of the regulation and is
thus not legitimate. The same signage requirement may exist for whatever you are
accused of, be it speeding, loud mufflers, or having your dog off its leash.
Coming soon: Dirty tactics by judges, including:
1. Presenting a weaker, strawman version of your argument during his ruling and
attributing it to you, so it's then easier for the judge to shoot holes in. Often
accompanied by "Quiet, I'm ruling" if you try to correct him. Tough situation, but one
approach is to interrupt as soon as the judge will let you with "Your honor, with all due
respect, that's not the argument I was making today."
2. Magistrates who will block your objections and procedural motions with a weak
explanation that this is an informal trial, but who then turn around and invoke formality
whenever it suits them, generally to stifle you, the defendant.
One important note: Always assume that the judge has access to your driving record,
and has reviewed it prior to your hearing. It goes without saying (but I'm saying it
anyway) that you should be completely truthful if asked about it.
Another important note: If the clerk allows you to pick the time of day for an
appearance, recent research suggests that judges are most likely to rule on behalf of
defendants first thing in the morning (just after breakfast), or immediately after lunch.
Cross-Examination
Once your hearing starts, the officer who wrote you the ticket will give a standardized
spiel about how he observed you speeding, passing illegally, or whatever. By
"standardized spiel" I mean just that; the cop will look at the checkboxes on the back of
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your ticket (containing such information as traffic volume, road conditions, weather, etc.)
and your information on the front, and give a scripted (and usually at least somewhat
inaccurate) narrative of what happened. After this narrative, you will get a chance to
question the officer.
Police officers who dedicate much of their time to writing tickets have a lot of standard
scripts they use, and a lot of times those scripts reveal just how divorced from reality they
really are. For example, a couple of months back I had a State Trooper in an unmarked
car tell me "I was concerned when you passed me going 78 [in a 75 zone], but when you
then accelerated to 81 I decided to pull you over." Now honestly, did seeing somebody
going 78 in a 75 (3 miles per hour, or 4 percent over the speed limit) actually cause him
concern? Maybe he is a fruitcake and the answer is yes, but more likely, this is just a
standardized line he uses on everybody, and he simply fills in your numbers as he says
it. When the officer starts using standardized descriptive language like this on the stand,
you can often use it to attack his credibility as a witness. So if you heard anything
inaccurate or improbable during this narrative, be sure and ask some questions about it.
For example, in a speeding case, the officer nearly always says "I observed (your car
description here) going approximately (your clocked speed here) miles per hour, and then
confirmed that speed with my radar unit." They will say this even if they were traveling
the opposite direction as you, it was at midnight with a new moon, and it was
snowing. But in reality, it's nearly impossible to estimate the speed of an oncoming car at
night, since all you've got to judge it by are how fast the headlights are converging. And
whether you're driving the speed limit, or twenty percent over, that rate of convergence is
going to be pretty similar. So if you hear something like this, drill down into it. Ask
questions about what exactly the officer saw that led to his estimation. In the above
example, you'd get him to admit that all he could really see was your headlights and not
much of the surrounding terrain. Wrap it up with an "Officer, are you telling this court
[the officer can lie to you all he wants, but lying to the court is perjury, thus the choice of
grammar here] that you can tell whether a car is going [your accused speed], versus [the
speed limit], simply based on how fast the headlights are converging?" If he sticks to his
story, then ask some even more detailed questions, e.g., "How fast to the headlights on
an oncoming car converge at x mph? How about y mph? How about z mph?"
Likewise, ask questions about details the cop did not write down (you'll know what was,
and was not, written down after you get a copy of the front and back of the officer's
copy of the ticket from the court clerk). If the cop only wrote down a vague description
of where he stopped you (e.g., on x road between y road and z road, as opposed to 20
feet forward of mile marker 162 on Highway 6), then drill down into this by asking a
couple of specific questions about your orientation relative to certain landmarks in the
area. The checkboxes on the back of the ticket may simply say that traffic volume was
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"medium". In this case, ask about the car immediately ahead of you, or next to
you. What color was it? How far away from your vehicle was it? What speed did you
estimate that vehicle was going? (Chances are the cop won't remember, and you can
perhaps then build a case that this other vehicle is what the radar unit locked onto, and
not yours.) This is also where you want to bring up minor descriptive errors on the
ticket, such as saying your car is dark green instead of dark blue. This type of error can
be used to create doubt as to the officer's observational capacity, and/or to conditions at
the time (such as darkness) that would make observations difficult even by a professional
trained to make them. Alternatively, if there a car near you that was the same color as
the one incorrectly stated on your ticket, perhaps the officer confused the two vehicles at
some point during apprehension?
Obviously, everybody in the courtroom knows that the cop doesn't remember your
specific traffic stop because it happened months ago and was probably just one of
hundreds. And yet highlighting inadequacies in the officer's recollection will still tend to
create a perception of unreliability of the witness. J ust a reminder that this is why it's a
bad idea to do anything memorable during your traffic stop, like go on a tirade about
how you're just an honest tax-payer trying to get to work, or complain that it seems like
you get a ticket on this road every other week. Comments like these will be written on
the back of the officer's copy of your ticket, and used to refresh his memory prior to
cross-examination!
If you're asking the cop to confirm something that's obviously a bit of a stretch, it may
help to preface your question with "Reminding you that you are under oath, officer,".
I highly recommend you check out The Ten Commandments of Cross-Examination. It's
got some great examples and cross-examination strategies.
Rules of Evidence
Depending on how formal traffic court is in your jurisdiction, you (and the prosecution)
may be bound by the Rules of Evidence. These rules dictate how and when evidence is
admissible, how witnesses may be questioned, and so on. Personally, I'd rather argue in
a court run by a judge and bound by the Rules of Evidence than before a magistrate in
an informal hearing. Why? More rules =more potential for technicalities that may help
you.
Additionally, the Rules of Evidence are mandatory for effectively cross-examining a
witness. For example, you can use the rules to demand that the officer you are cross-
examining limits himself to a response of "Yes" or "No" when answering one of your
questions. If your traffic court is presided over by a magistrate, expect a more informal
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trial where the magistrate may take a more active role as a fact-finder. Note that in a
hearing before a magistrate, the Rules of Evidence may be less strictly adhered to. A
magistrate will often allow a witness to give explanatory qualificationsin when answering
your yes-or-no questions, which can really undermines your control of the witness if
you're not prepared for this eventuality.
Note that most states have adopted rules of evidence which are almost identical to the
Federal Rules of Evidence. Even if your jurisdiction's traffic court doesn't strictly adhere
to these rules, you should still familiarize yourself with them. Some concepts, like
hearsay, admissibility of evidence, and whether a witness is qualified to make
technical or legal arguments can serve you well even in the most informal of
courts. For example, if key evidence against you is inadmissible, or if an officer tries to
present a verbal account of the contents of a record (hearsay) when the actual records
could simply be produced, or if the officer attempts to wax nostalgic about vicissitudes of
Doppler radar despite having received only minimal training on the subject (not an expert
witness), even the most informal courts will generally sustain your objection.
Judicial Notice
In case this comes up in court: judicial notice is when the court takes a well-established
and well-documented fact for granted, thus removing that fact from contention in the
courtroom. For example, if I argue that Main Street runs north/south, but the
prosecution argues that it runs east/west, and the judge knows this is a matter of common
knowledge, he can take judicial notice of the fact that it runs north/south and thus
prevent the parties from wasting any more time debating the topic. Sometimes, the
prosecution will ask a judge to take judicial notice of the fact that radar is an accurate
way to measure vehicular speed. If this comes up, be sure and argue for a more limited
version of the notice, e.g., "Under proper operational circumstances, radar can be an
effective way to measure vehicular speed." Obviously, you would then proceed to argue
that these operational circumstances (often as defined in the manual of the radar unit)
were not met in your case.
Closing Arguments
In your closing argument, you should summarize all the facts and legal points that help
your case. Since new flaws in the prosecution's case may arise during cross-examination
of the officer, it's wise to reserve some space in the portion of your notes devoted to your
closing statement so that you can add these new items and avoid forgetting them in the
heat of the hearing.
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Some ticket-fighting references suggest that, if the cop is the one who presents the case
against you (and not a district attorney), that you should object if the cop attempts to give
a closing argument. The grounds for this objection would be that the cop is not an
attorney and thus would be engaging in the unauthorized practice of law by giving a
closing argument. This argument does have some legal merit. After all, you can
represent yourself because you are a defendant in a criminal proceeding. But the cop
isn't representing himself, he is representing another (The People of your jurisdiction),
and you can't represent another party unless you are a member of the bar.
However, depending on your judge and jurisdiction (and whether you're dealing with a
magistrate in an informal setting), this may just piss the judge off. I say this for a couple
of reasons. First, because I have often seen judges offer cops the opportunity to make a
closing argument; were you to then object, you'd be implying that the judge suggested
one of the parties do something improper. This is fine if you have something significant
to gain, but I have never seen a police officer give a compelling closing
argument. Besides which, there won't be a jury to hear it, so there is much less chance
of the outcome being swayed by an emotion- or drama-packed summary. Finally, many
jurisdictions are set up such that the district attorney never shows up and the trooper,
deputy, or whomever is customarily allowed to make a closing argument, and objecting
to this custom may just look like last-minute desperation to the judge.
Before the end of the case, and certainly before making your closing argument, always
move for summary judgment! The importance of doing so cannot be overstated. You
can move (a.k.a. motion) for summary judgment at any point in the trial (you can even
do so before the trial, wherein your motion would take the form of sort of a preview of
the legal issues you plan to bring up in trial), and you can do so repeatedly. In asking for
summary judgment, you should make as compelling an argument to the judge as possible
that, applying the law to the undisputed facts of your case, you are entitled to win (this is
the legal standard the judge must use to deny or grant your motion). For example, if
there is some legal technicality that applies to your case which renders all other issues
moot (e.g., you have been charged with something that was not technically illegal
according to the letter of the law), you would briefly summarize the situation, and state
that because of how the relevant law(s) apply to your case, you respectfully move for
summary judgment. If you've got several legal issues that favor you, then summarize all
of them. It's far better to make a motion for summary judgment based on too big a list of
reasons than too few, for reasons I'll explain. Remember, though, that summary
judgment is for issues wherein the facts are undisputed: if a legal issue hinges upon a fact
that you and the prosecution do not agree on, then it is not a good candidate for a
summary judgment motion.
If your motion is granted, you'll win and your case will be dismissed. This would be a
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desirable outcome, but you should move for summary judgment even if you foresee
no chance of it being granted by your judge. Why? Because the fact that you made a
motion for summary judgment and were denied gives you a "hook" into the judge's
decision which you can later appeal. You say you don't have any immediate plans to
appeal? Motion for summary judgment anyway! It's important to leave your options
open so that if you realize the day after your trial that the judge made a glaring mistake,
you've got something to appeal. (This is far more common than you'd think; once the
stress and adrenaline of your trial fade, and you've "slept on it", you may very well wake
up the next morning with a strong case for appeal already in mind.
If you take away any fact about trials away from this web page, let it be this: if you didn't
move for summary judgment on the grounds of a given issue, you will have little or no
grounds for appeal based on that issue, and any future appeal will probably be dismissed
without ever being considered no matter how fundamental or glaringly erroneous the
judge's failure to deal with the issue. Put another way, if you don't force the judge to
explicitly render an opinion on your strongest legal issue(s), then you'll make it very
difficult for an appelate court to separate out or otherwise divine what the judge's
thinking and conclusions were on that issue. Courts of appeals are not in the business at
guessing at trial court judge's motivations, let alone overturning cases on such a basis. By
moving for summary judgment, you separate out a purely legal aspect of your case in
such a way that the appellate court can do de novo review; in contrast, if the appellate
court can only look at the ultimate verdict with all your factual issues rolled in, you'll face
a much more stringent standard of review.
Some Miscellaneous Motions
Some miscellaneous sample motions are presented below in no particular order. These
illustrate not only how to ask the court to punish the opposition for deceptive or bad-faith
behavior (or ask a higher court to force a lower court judge to do his job), but also show
how to renew any type of motion that has been ignored, and how to request
reconsideration of any type of motion that has been denied.
Example: Motion for Sanctions
Overview: The deputy district attorney in this case filed a motion to dismiss an appeal
based on false facts and legal characterization. This motion asks the court to apply
sanctions (called "Rule 11 sanctions" in some jurisdictions) against the prosecutor.
Comments: J udges are often reluctant to call out prosecutors when they misbehave due
to the simple fact that the prosecutor is a repeat player. Next week, that same prosecutor
will be before the judge again on some other matter, whereas the average traffic ticket
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defendant is not a regular in the judge's courtroom. A Motion for Sanctions is a great
way to remind the judge that a district attorney is going over the line, and make both
parties aware that you know your rights and aren't going to take this kind of crap. For
extra style points, find yourself some of those Valentine's Day "Love" stamps at the post
office, and use them for postage on the copy of the Motion for Sanctions that you mail
to the prosecutor. If it's the wrong time of year to find heart-themed stamps, Looney
Toons stamps can also send a message, as does Mickey Mouse.
Example: Renewal of Motion for Sanctions
Overview: As often happens, the judge ignored the motion for sanctions without ruling
on it. This motion renews the earlier motion for sanctions.
Comments: Few things are quite so frustrating as when a judge completely ignores a
filed motion. Perhaps the most diplomatic approach is to contact that judge's clerk and
ask him/her about the status of the motion; often times, the motion will soon find its way
onto the judge's desk and get ruled on. But when that doesn't work, a motion which
renews the original request is the way to go.
Example: Motion to Reconsider Denial of Sanctions
Overview: Since the appeal had already proceeded to the next level in the judicial
system, the judge evidently felt that there was no need to sanction the deputy district
attorney for her frivolous motion and its false arguments. As a result, the judge ruled
that the court no longer had jurisdiction to sanction the DA. This motion argues that
such is not the case.
Comments: When you a judge rules against your motion, you can always file a motion
to reconsider the denial of the original motion.
APPEALS AND POST-CONVICTION REVIEW
All court cases seem to be subject to what litigators call the "80-20 Rule". The 80-20
Rule says that 80% of the time you've got a slam-dunk case, you will win, but
conversely, you will inexplicably lose that same slam-dunk case 20% of the
time. Likewise, if you've got a case with no hope of winning, 80% of the time you will
lose that case as predicted, but 20% of the time you'll win the case against all odds.
If you've lost a case and are not happy with the outcome, you've got two legal options:
appealing the ruling to a higher court, and/or filing a motion with the traffic court for
post-conviction review of your case.
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This section has become large enough that it has been broken out into a separate page
entitled The Free Existence Guide to Appealing Traffic Court Decisions.
MISCELLANEOUS
What If I Don't Show Up To My Trial?
(Failure to show up to a scheduled court appearance is generally a bad idea. I'm only
covering it here because lots of people seem to have this question.) If you miss your
hearing (either preliminary, or final) for whatever reason, a default judgment of "Guilty"
will be entered against you. A judgment of the non-plea-bargain charge, points and fine
will likewise be entered against you. Generally, you will also have your license
suspended because you weren't there to pay the resulting fine (although you'll typically
receive a letter warning you about the default judgment, and giving you thirty days or so
to pay the fine). Depending on your jurisdiction and the nature of your infraction, you
may also have a bench warrant issued by the court for your arrest (a consequence of the
contempt of court resulting from your failure to show up). With a bench warrant, the
police will not seek you out and arrest you (unless the charge underlying your case is
particularly serious, or unless they truly have nothing better to do). However, if you
happen to run into any police officers (e.g., because you called the police to your house
for some reason, or because you get pulled over for a broken taillight), the officer may
legally arrest you. If you've got a bench warrant out for your arrest, try to resolve the
root cause as soon as possible, and drive cautiously in the mean time. Also be aware that
missing a court date will generally result in a forfeiture of bail money, if any, and if you
are subsequently arrested you will be held without bail!
The Non-Resident Violators Compact: What Is It, and Why Do I
Care?
The Non-Resident Violators Compact (NRVC) was formed several decades ago by the
northeastern states and allows states to assist each other in enforcing traffic laws (perhaps
more accurately, it allows states to assist each other with increasing revenues). When an
out-of-state driver violates certain driving laws of a member state and fails to appear for
trial or pay the fine imposed for the violation, the state may send a non-compliance
notice to the driver's home state motor vehicle agency. The driver can subsequently lose
his license for a violation in an entirely different state! Currently, all states are NRVC
members except Alaska, California, Michigan, Montana, and Wisconsin.
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Note that under NRVC, the jurisdiction that issued the ticket cannot not transmit a report
on any violation if the date of transmission is more than six months after the date on
which the traffic citation was issued. What does this mean? Well, if you get a ticket in
another state, and manage to keep that ticket pending in the courts of said state until six
months have passed, you may be able to ignore the ticket without worrying about your
license being adversely affected back home. You will want to avoid driving in the state
where you got the ticket, however, since you will likely be arrested if pulled over there
again. Not a desirable situation for most people, but you should be aware of your
options nonetheless.
Be aware that Connecticut and Arkansas have already joined the Driver's License
Agreement (DLA), a more comprehensive version of the NRVC. The DLA is much
more far-reaching, and allows court orders from other states to follow drivers back to
their home state (often with absurd results). Likewise, moving violations from foreign
countries can make their way onto your driving record back home. There has been some
support for joining DLA from some of the other states, but the AAMVA (the mastermind
behind the DLA) will not reveal which ones.
Coming soon: A discussion of international driving permits (which aren't actually a
driver's license), foreign driver's licenses, and whether you can use the latter to dodge
points.
Strategy: What if I'm Not a Lawyer?
Warning: this section will probably come across as me telling you how to "work the
system". But if you're not a lawyer, it's important to try to turn your status as a
non-legal-professional into an advantage, or at least to mitigate its negative effects. If
you are a lawyer, skip this part, as it may make you barf.
Not being a lawyer hurts you, but can have some positive aspects as well if you adjust
your strategy accordingly. First, the good. You can often get lots of help from clerks
and judges (this assumes your judge isn't just trying to rake in revenue for his
town). Also, judges will usually be more willing to forgive procedural errors (e.g.,
making a mistake on a form or a motion, or missing a deadline for filing
something). Now, the bad. J udges will be far more skeptical of any legal arguments you
make as a non-lawyer. Why? Because lawyers are "officers of the court" and thus have
certain obligations that don't directly apply to you. For example, a lawyer has a duty to
cite negative legal authority. He can't only mention a 1977 case that helps him, when he
knows the case was overruled by another case in 1981. Likewise, a lawyer must make
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arguments in good faith (e.g., he can't file a motion purely to delay the proceedings in a
case). If a lawyer does these things, he is subject to sanctions as laid out by the bar in his
state. You, as a non-lawyer, are immune to these sanctions. The main power the judge
has over you is contempt of court. What does this mean? It means you should
absolutely avoid bad faith arguments (I would define this as arguments you are 100
percent sure have no legal merit; it we're only talking 99 percent sure, then go ahead and
make them!) Like I said, you get the benefit of the doubt on a lot of stuff. It's harder for
you to do legal research, so maybe that's why you didn't list an important negative
authority in the motion you just filed.
Ever see the Saturday Night Live skit Unfrozen Caveman Lawyer? When confronted
with legal complexity that hurt his case, our hero would say something like "I am but a
caveman, and I do not understand your ways. But one thing I do understand is
(whatever fundamental point he was trying to assert)." This is the card you want to be
ready to play at any point that you need a little flexibility in a procedural rule, or need a
procedural error forgiven. Let's say you're standing before a judge and have to enter a
plea, and you've only got one real argument to rely on but you don't want to go to trial
and then find out the judge isn't receptive to it. You might say something like "I'm sorry,
your honor, I'm not a lawyer and I've never done this before, but I had a question about
(your main argument). In light of that, should I even have gotten this ticket?" What this
often does is get the judge to reveal a little about how heavily he would weight that kind
of argument before you decide whether you want to go to trial. If he shoots it down right
away, then you can take the plea bargain and save yourself some points on your license
without going to trial before an unreceptive judge. If he indicates that your point would
certainly be something that would be taken into consideration, then maybe it's worth
going to trial. J ust about everywhere, you have the right to talk to a judge or magistrate
before entering a plea or accepting a plea bargain. If this option isn't offered to you, then
ask for it!
Now let's say you missed a court appearance, a filing deadline, or filed a motion on the
wrong form. You get a notice in the mail advising you of a default judgement, dismissal
of an appeal, or rejection of the errant motion. Fortunately, Unfrozen Caveman
Lawyer works by mail, too! Type up a motion asking for forgiveness. Cite the
constitution, and remind them that you're not a lawyer. The phrase "All I want is my
constitutionally-guaranteed day in court" is a good one. Once you've got the motion (to
set aside a default judgment, to reconsider dismissal or denial, or whatever) exactly the
way you want it, grab a blank motion form and neatly hand-write in the content you just
typed up. Nothing screams "lack of legal sophistication" like filing a hand-written motion
in a trial!
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Coming soon: Speed studies, an exemplary outline, and how the rules of evidence can
work for/against you...
Also coming soon: Appeals, including exemplary appeal forms and an appeal brief
Note regarding school zones: I know more than one person who has been ticketed for
speeding in a school zone on a holiday, because the speed zone sign was still
flashing. However, it is important to note that many states make the lower speed limit
contingent upon the conditions requiring the lower limit, and not upon the sign
flashing. E.g., Colorado drivers see CRSA 42-4-1102, which relates to speed zones and
state requirements for them.
Links of Interest
August 2011: Red light cameras on their way out?
The campaign to eliminate red light cameras in Los Angeles has gained serious traction
and is already having an effect; the Police Commission has decided not to renew the
contract on red light cameras there (see: this video).
April 2011: Governments Balancing Budgets on Drivers' Backs
Corrupt local governments have begun balancing their budgets on the backs of drivers as
states across the US triple speeding fines and add ridiculous surcharges to moving
violations. The City of Los Angeles now makes $1.5 million a year from cameras at a
single intersection in the San Fernando Valley. Perhaps unsurprisingly, the hit count on
this page has gone through the roof in recent months!
August 2010: New court rulings on red light cameras
Between my own lack of personal experience fighting a red light camera ticket, and the
fact that none of you have submitted filings from red light cases (remember, even filings
that didn't work are helpful!), I don't have much written on this topic. However, a recent
US Supreme Court ruling on a Massachusetts case requires that scientists be made
available to testify in court cases about lab evidence they prepare before the government
can assess criminal penalties. Unfortunately, in 21 out of the 23 states that use red light
cameras, running a red light (like a parking ticket) leads to civil, and not criminal
penalties. But for those living in California (and one other state I have yet to identify),
this ruling has important implications. Already, California courts have tossed out entire
groups of red light camera cases based on this due process issue.
September 2007: Speed legally in Sunriver, Oregon
Reason Magazine reports on an interesting experiment in private road ownership. This
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followup article also provides some coverage.
August 2007: Police Arrest a Man for Taping a Traffic Stop
Pennsylvania police recently arrested Brian D. Kelly for simply videotaping his own
traffic stop. Police officers will customarily videotape you during any traffic stop, but in
some states, those same officers will throw you in jail if you try to create your own
tape. If you expect an abuse of authority, and do decide to record your encounter, check
your local laws first; you may be legally obligated to make the officer aware that you are
recording, which may make him less likely to say career-limiting (or at least, ticket-
defeating) things.
October 2006: The Kangaroo Courts of New York State
Last month, The New York Times did a 3-part story on the corrupt and out-of-control
"town and village courts" of upstate New York:
Part 1
Part 2
Part 3
Not registered with the New York Times, and don't want to be? Yeah, me neither. Visit
Bug-Me-Not for a free log-in you can use to view the stories.
J une 2006: More Washington drivers are fighting tickets - and winning
(Washington has absurdly expensive traffic fines, so this trend does not surprise me!)
Click here
Frequently Asked Questions
I missed my court date/didn't find out about it until after it went down. What now?
Call the clerk to check the status of your case. There's always a small chance that it got
rescheduled at the last minute to the judge eating some bad clams, and there is no sense
assuming the worst. If your hearing did indeed take place without you or anyone
representing you present, chances are a "Default J udgment" was entered against
you. Basically, it's like forfeiting a sports game; you didn't show up, so you lost.
If this is the case, your best option is probably to file a Motion to Set Aside Default
J udgment explaining that your failure to show up was unavoidable and unintentional, and
asking the court very nicely to give you a chance to have your constitutionally-guaranteed
chance to defend yourself. The suggestions for Motions for Extension of Time on the
Traffic Case Appeal Guide are definitely relevant for the Motion to Set Aside, including
the one about going old-school and hand-writing your motion.
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What about DUI offenses?
It's been asked a lot, so I wrote up a quick explanation of why I don't cover DUI and
DWI defenses on this page along with a bit of advice for those falsely accused.
Is it true that you can be "too intelligent" to be hired as a police officer?
Yes. Obviously, each municipality will have its own rules, but some police departments
will not hire people who score too high on an intelligence test. It may sound crazy, but
the courts have affirmed this practice. A Connecticut man named Robert J ordan brought
suit against the New London Police Department for discrimination because he was
excluded for having an IQ of approximately 125. Sadly, the 2nd U.S. Circuit Court of
Appeals ruled that since all applicants with an IQ of 125 are similarly excluded, Mr.
J ordan was not discriminated against. Given the recent eminent domain abuses in New
London, perhaps this IQ cap applies to all government employees in that city.
Is it legal to flash your headlights to warn other drivers about a speed trap?
I haven't researched the issue thoroughly, but I have come across several state cases
where headlight flashing was held to be free speech protected by the 1st
amendment. While it's hard to imagine how encouraging others to obey the law could be
illegal, I believe this is the case in the United Kingdom (not sure about Canada, though).
Is it legal for me to videotape or otherwise record my traffic stop?
Due to the rapid growth of police power in many parts of the US, the answer is not the
unqualified "yes" one might expect. Presently, the situation varies by jursidiction. As of
2010, at least some states (e.g., Ohio) regard recording your traffic stop, even if it is in a
public place, as a Class I felony punishable by 4 - 15 years in prison. (See this article
and this one for more specific information on some recent and still-pending cases in
various states.) Since judicial common sense has been abandoned in so many of
America's courtrooms, the best solution is for the states to pass laws explicitly legalizing
videotaping any government employees' actions in any public place to safeguard against
apathetic judges and corrupt police agencies. However, given the power of police unions
and their lobbyists, getting such laws passed may be challenging.
Are we becoming a police state?
I wrote a brief essay on the psychological and economic trends of traffic enforcement to
memorialize some of what I have learned from conversations with citizens and law
enforcement officers.
Do I have to obey those yellow speed limit signs on curves/exit ramps?
In most jurisdictions, and persuant to the Manual on Uniform Traffic Control Devices,
these yellow signs are only advisory in nature, and thus merely exceeding the yellow
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posted limit is not, by itself, illegal.
What if a city cop tries to pull me over outside of city limits or other jurisdictional
boundary?
Be very careful about making jurisdictional assumptions, no matter how logical they may
seem! In many jurisdictions, officers are cross-deputized so they can operate in adjacent
jurisdictions. For example, in Colorado, the Fort Collins City Police are also deputized
in Larimer County, so they can technically ticket or arrest you outside city limits! Even
more absurdly, this is also true of the Colorado State University Police; instead of merely
having jurisdiction on their .9 square mile campus, they've got jurisdiction across the
2600+square miles that comprise Larimer County!
The police are chasing me but I'm really close to a state (or other jurisdictional)
border! Am I required to stop?
This probably isn't the best time for you to be surfing the web. Focus on the road,
man! But seriously, exercise extreme caution. Many states (e.g., see Illinois 725 ILCS
5/107-4, Delaware Tit. 11 1932, Washington RCW 10.93.120, and other "fresh
pursuit" statutes) grant jurisdiction to officers from other jurisdictions (including other
states!) involved in "fresh pursuit" (defined as the immediate pursuit of a person who is
endeavoring to avoid arrest). The pursuing officer thus has the same authority to arrest
and hold the motorist in custody as a local officer would have if the offense was
committed inside the new jurisdiction! If the state you're hurtling towards lacks such a
statute, the common law "fresh pursuit" exception is typically limited to felonies. Does
the felony of evading arrest count? Quite possibly, so if there is evidence you are
attempting to escape or flee the jurisdiction to avoid arrest (e.g., cop has been clearly
following you with his strobe lights on for awhile), the lack of a fresh pursuit statute may
not help much. But what if you blow past a speed trap half a mile from the border, and
are in another state before the officer manages to catch up to you? You might be able to
make a jurisdictional argument for continuing merrily on your way.
Is there anything else I should know about police evasion?
Know the pursuit policies of your local police agencies! Officers in some agencies may
not be allowed to pursue you for anything short of a violent felony. Note that I definitely
donot recommend that you evade the police. In fact, I hope you won't take my
disclosure of the facts that the Ford Crown Victoria Police Interceptor, America's most
ubiquitous police cruiser, was speed limited to 137 mph until 1998, and is currently
speed limited to 129 mph, as motivation to make sure the next vehicle you purchase can
comfortably exceed those limits. The Ford Motor Company seems to closely guard these
statistics, and a fear of encouraging scofflaws to be successful in such endeavors is
probably the reason! In the same spirit, I hope you won't use this handy guide to spotting
34 of 35 3/7/2012 10:11 AM
unmarked police cars to avoid tickets.
Email the Author
The author of this page can be reached at webmaster-at-freeexistence.org. Replace "-at-"
with "@" in the "To:" line.
Note that all downloadable documents have had the defendant names, dates, and other
identifying facts changed to protect the contributors from any potential retaliation.
Reminder: All content on this site is automatically copyrighted by virtue of the Berne
Convention for the Protection of Literary and Artistic Works.
35 of 35 3/7/2012 10:11 AM
Case 1:06-cv-01871-HHK-JMF Document 1 Filed 11/02/2006 Page 1 of 17
Case 1:06-cv-01871-HHK-JMF Document 1-2 Filed 11/02/2006 Page 1 of 2
Case 1:06-cv-01871-HHK-JMF Document 1-2 Filed 11/02/2006 Page 2 of 2
Detail page for J OHN TARTER
Name JOHN TARTER
Position Sergeant
Reno
Notice TheCity of Reno failed to report thecost of employeehealth carebenefits. Only thecost of retirement benefits is included within the
"Benefits" category for this jurisdiction.
Year 2009
Base Pay $103,993.78
Overtime and
Callback Collected
$2,714.50
Total Pay $118,315.72
Benefits Accumulated $38,477.70
Total Pay & Benefits $156,793.42
State Government: Salaries, CAFRS, Main Contracts Page, StateFinancial Documents
Education: CCSD Warrants, NSHE Budgets
Politicians: 2010 Transparency Survey, Congressional Disbursements
Connect: Facebook, Twitter
About Us: Contact Us, FAQ, Disclaimer
TransparentNevadais provided by the NevadaPolicy Research Instituteas apublic service.
J OHN TARTER TransparentNevada http://www.transparentnevada.com/salaries/2009/reno/john-tarter/
1 of 1 3/7/2012 10:23 AM
Detail page for J OHN TARTER
Name J OHN TARTER
Position 7555 Sergeant
Reno
Year 2010
Base Pay $109,225.10
Overtime and
Callback Collected
$7,733.14
Other Pay $17,535.81
Total Pay $134,494.05
Benefits Accumulated N/A
Total Pay & Benefits $174,907.34
TransparentNevada is provided by theNevada Policy Research Instituteas apublic service.
J OHN TARTER TransparentNevada http://www.transparentnevada.com/salaries/2010/reno/john-tarter/
1 of 1 3/7/2012 10:22 AM
Search - Or view all jurisdictions
Search for:
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Year:
8 results for tarter
Name Position Base Pay Benefits
Total Pay
& Benefits
Jurisdiction Year
JOHN TARTER 7555 Sergeant $109,225.10 N/A $174,907.34 Reno 2010
TARTER, ROBERT T HIGH DESERT CORR CNTR - ALT PRO PRINC $90,640.56 N/A $92,987.77 Clark County School District 2010
TARTER, KIMBERLEE A ADMIN SERVICES OFFICER 3 $79,996.80 N/A $76,150.80 State of Nevada 2010
JOHN TARTER Sergeant $103,993.78 $38,477.70 $156,793.42 Reno 2009
ROBERT T TARTER HIGH DESERT CORR CNTR - ALT PRO PRINC $91,326.00 $0.00 $93,684.51 Clark County School District 2009
KIMBERLEE A TARTER ADMIN SERVICES OFFICER 3 $80,212.80 $0.00 $78,849.40 State of Nevada 2009
KimberleeA Tarter ADMIN SERVICES OFFICER 3 $78,690.48 $0.00 $78,990.48 State of Nevada 2008
KimberleeTarter PURCHASING OFFICER 3 $65,232.97 $5,949.17 $71,182.14 State of Nevada 2007
TransparentNevadais provided by the NevadaPolicy Research Instituteas apublic service.
Search Results TransparentNevada http://www.transparentnevada.com/salaries/search/?t=name&q=tarter
1 of 1 3/7/2012 10:26 AM

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