Expedition upon Expedition: Former President Trump Seeks Supreme Court Intervention to Reverse the Eleventh Circuit’s Intervention in Special Master Proceedings; Department of Justice Seeks to Speed Up Appellate Review

Trump v. United States. No. 22-13005 (11th Cir.); Trump v. United States, No. 22-81294 (S.D. Fla.). Application to Vacate the Eleventh Circuit’s Stay of an Order Issued by the United States District Court for the Southern District of Florida. Petition to the Associate Supreme Court Justice of the United States for the Eleventh Circuit submitted October 4, 2022.


Former President Trump seeks the aid of the United States Supreme Court in vacating an order of the United States Court of Appeals for the Eleventh Circuit which stayed a lower court’s order.  The lower court’s order precluded the use of documents with classification markings in  a criminal investigation while the documents were under review by a Special Master appointed by the court.  The Eleventh Circuit’s order countermanded that determination which in turn permitted resumption of use of the documents in criminal investigations.

The former president argues that the Eleventh Circuit had no power to rule on the Department of Justice’s request, as the ruling was an interlocutory, or non-final ruling.  Such rulings are not permitted except in limited circumstances.

At the same time, the Department of Justice seeks to press ahead in its request for appellate review of the federal district court’s actions.

 

Application to Vacate Eleventh Circuit Order October 4, 2022

Opposition to Appellant’s Motion to Expedite Appeal October 3, 2022

Motion to Expedite Appeal September 30, 2022

Carry On, Criminal Investigators! Eleventh Circuit Stays District Court Order Prohibiting Use of Classified Documents Seized from Former President’s Residence Pending Special Master Review


Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued  September 22, 2022 (Not For Publication).


In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago.  Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue.  The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.  

The United States sought interlocutory review in the Eleventh Circuit Court of Appeals.  The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed.  The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.

Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202

More Translucent than Transparent, Unsealed Government Inventory and Investigative Status Report Indicate Government’s Quest for Evidence Continues


Donald J. Trump v. United States, No. 22-81294 (AMC).  Minute order entered September 2, 2022.

The federal district court in Florida has heard argument concerning the former president’s request for appointment of a Special Master and for other relief, and has directed that the government’s investigative status report and inventory of items seized at the Mar-a-Lago residence be unsealed, with an order to follow.

The federal investigative team has advised the court that it is reviewing materials seized at Mar-a-Lago, has separated them into items with classified markings and those without, has taken care to conform its work to that of a privilege review team.

The federal investigative team has advised the court that the review of the materials seized is in pursuit of an “ongoing criminal investigation.”  The status report explains that materials are being reviewed for relevance to unstated charges:

The investigative team has reviewed the seized materials in furtherance of its ongoing investigation, evaluating the relevance and character of each item seized, and making preliminary determinations about investigative avenues suggested or warranted by the character and nature of the seized items. The seized materials will continue to be used to further the government’s investigation, and the investigative team will continue to use and evaluate the seized materials as it takes further investigative steps, such as through additional witness interviews and grand jury practice. Additionally, all evidence pertaining to the seized items — including, but not limited to, the nature and manner in which they were stored, as well as any evidence with respect to particular documents of interest — will inform the government’s investigation. Thus, it is important to note, “review” of the seized material is not a single investigative step but an ongoing process in this active criminal investigation.

Notice by Investigative Team of Status of Review, page 2.

The status report is clear that the review of seized materials is not in support of conclusions reached with respect to any violations of criminal or civil law, but in support of investigation of whether any violations of criminal or civil law may have occurred.  The review team is clear that such materials may be used in grand jury proceedings.

Should materials become part of grand jury proceedings, disclosure of the nature of any such materials would become highly restricted in accordance with Federal Rules of Criminal Procedure 6(e).

The status report notes that a federal agency is also reviewing the materials seized to determine the threat to national security should such documents be released.

The government investigators have assured the court that due care has been and will be exercised to consider whether any materials are subject to the attorney client privilege.

The newly unsealed inventory provides information about the place from which materials were seized, the number of items in each container, and the nature of the items, such as “magazines” or “newspapers”, clothing, gift items, books, photographs, or items with classification markings.

2022 08 30 Notice by Investigative Team of Status of Review unsealed 2022 09 02

2022 08 30 Detailed Property Inventory Pursuant to Court’s Preliminary Order unsealed 2022 09 02

Counsel for Former President Urge Court to Reject Any Notion that Ownership is a Prerequisite to Challenge to Search and Seizure at Mar-a-Lago Residence


Donald J. Trump v. United States, No. 22-81294 (AMC).  Movant’s Reply to United States’ Response to Motion for Judicial Oversight and Additional Relief, filed August 31, 2022.  Hearing September 1, 2022 at U.S. District Court in Florida at 1 p.m. 

Counsel for former president Donald J. Trump argue that no precedent exists for the government’s argument that in the absence of a property interest –that interest to be determined by the government — an individual seeking to challenge a search and seizure of his residence has no recourse because, in the absence of a property interest — that interest to be determined by the government — the individual who lacks an ownership interest in materials seized lacks standing to seek review.  In the absence of standing, the court has no power to hear the case.  

The government’s argument, counsel have submitted, has no support in extant Fourth Amendment jurisprudence, which recognizes that it is governmental intrusion that is central to the Fourth Amendment’s restrictions on governmental power.  What is necessary is “a legitimate expectation of privacy in the premises searched or the items seized.” Reply Memorandum at 5, quoting United States v. Rackley, 742 F.2d 1266, 1270 (11th Cir. 1984).   The government’s position is not only in error as a matter of constitutional law, but the government fails to recognize that the question before the court is the propriety of appointment of a Special Master, which is directed to the power of the court to grant equitable relief. 

Counsel for the former president observe that any authority to conduct privilege review presented within the application for the warrant issued prior to the search and seizure at Mar-a-Lago was narrowly constrained a a certain portion of the property, yet as the government insists that its review is complete, it would appear that the government exceeded those bounds. 

The government’s argument that the court ought not insert itself into what has been styled a ‘national security’ review by a government entity cannot succeed.  Power to adjudicate matters relating to governmental exercise of powers is at the core of the need for a federal judiciary.  

Counsel note that the government has not conducted itself with the high standards which it purports to uphold, as evidence by the dramatic — and apparently staged — submission to the court of a photograph showing documents bearing “classified” cover sheets.

The former president is in need of an inventory of items seized in order to assert his interests in materials gathered through use of criminal process in a matter that ought to have been a routine discussion of items sought for a presidential library under the Presidential Records Act.  

Movant’s Reply to United States, No. 22-81294 August 31, 2022

 

Inclined to Appoint Special Master to Review Mar-a-Lago Materials Seized, Federal Judge demands Status of Review and Itemization of Seized Materials by Tuesday, August 30, with Hearing Set for September 1, 2022.

Donald J. Trump v. United States, No. 22-cv-81294 (AMC) (S.D. Fla). Preliminary Order on Motion for Judicial Oversight and Additional Relief entered August 27, 2022.

In the Matter of the Search of Mar-a-Lago, No. 22-cv-81294 (AMC) (S.D. Fla.) Movant’s Supplemental Filing in Support of Motion for Judicial Oversight and Additional Relief filed August 26, 2022.

Former President Donald J. Trump has challenged the constitutionality of a search and seizure conducted at his Mar-a-Lago residence on August 8th and has moved the court for the Appointment of a Special Master to manage review of the documents and things seized.  

The federal court in the Southern District of Florida has indicated a “preliminary intent” to appoint a special master, subject to the submission of briefs on August 30 and 31st and a hearing before the court on September 1, 2022 at 1 p.m.

The court has ordered the United States to provide a detailed report of the status of its review of the seized materials as well as a detailed account of what was seized and removed from the Mar-a-Lago residence on August 8.

Supplementing its initial motion to the court, counsel for the former president note that the redacted affidavit supporting issuance of the warrant authorizing the search, released on August 26, provides little insight into any necessity for it, particularly as continuous cooperation had been demonstrated, and particularly as the use of police powers seemed needless where compliance with a civil statute, the Presidential Records Act, was said to be in issue.

Published reports indicate that national security agencies are reviewing materials seized.  Whether review will be said to be complete by the time of this week’s briefing, which could be argued to obviate any need for a special master, remains to be seen.  See Classified Documents Seized from Trump’s Home Undergoing Security-Risk Assessment.  Wall Street Journal, August 28, 2022.  

 

2022 08 27 22-81294 Preliminary Order on Motion for Judicial Oversight and Additional Relief

2022 08 26 22-81294 Movant’s Supplemental Filing in Support of Motion for Judicial Oversight and Additional Relief

 


 

Redacted Affidavit in Support of Warrant to Search Former President’s Residence Reveals Background Information and Theory Concerning Alleged Presence of Classified Materials But Conceals Details


 

In re: Sealed Search Warrant, No. 22-mj-8332 (BER). Redacted Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize docketed August 26, 2022.


The Department of Justice has complied with the U.S. District Court’s order to file a public copy of the affidavit supporting a search and seizure of former President Donald J. Trump’s residence, which occurred on August 8, 2022.  

 

The Department of Justice has outlined the reasons for the redactions made to the documents, which were reviewed by the court before the affidavit was released.  The federal government sought redactions to protect: 1) witness identities; 2) investigative plans or “roadmaps”; 3) Rule 6(e)[grand jury] materials; 4) law enforcement safety; 5) privacy of involved individuals.

 

The redacted affidavit recites that in January, 2022, the National Archives and Records Administration (NARA) received fifteen boxes of documents transferred from the former president’s Florida residence.  NARA became concerned because documents bearing classification markings were included in the transmittal, and was also concerned about the organization and presentation of those materials.  

 

NARA contacted the Department of Justice about these concerns, which prompted the Federal Bureau of Investigation to open a criminal investigation to explore how documents bearing classification markings were removed from the White House, the nature of any storage at the former president’s Florida residence, whether additional materials were stored there, and who was involved in the removal and storage of classified informative in an unauthorized space. 

 

Investigation confirmed the presence of documents marked classified within the transmittal to NARA.  Review prompted the observation that National Defense Information (NDI) was likely within those documents, and that the storage of the fifteen boxes sent to NARA had been at an unauthorized location. 

 

A section of the affidavit provides the caption “There is Probable Cause to Believe that Documents Containing Classified NDI and Presidential Records Remain at the Premises,” but the section is otherwise entirely redacted, with the exception of a recital concerning the location of documents in unauthorized spaces, a reference to ‘violations,’ and a description of the area to be searched.  Concern about the presence of third parties is expressed.  

 

Much of the affidavit recites what the Federal Bureau of Investigation proffers as support in the law for issuance of a warrant to search the former president’s residence and to seize any responsive materials found there, which would include materials believed to be subject to the Presidential Records Act.  

 

The affidavit mentions a published report describing the presence of moving vans at the former president’s Florida residence in January, 2021, and discloses that NARA was advised in May, 2021 that Presidential Records Act materials had been found and were ready to be retrieved. 

 

The affiant reiterates that inventory of the documents transferred to NARA in January, 2022 bore classification markings at high levels of restriction and that those documents were likely to contain National Defense Information (NDI).  

 

Because of believed violations of laws addressing the management of classified information and the belief that materials illegally possess would be found at the former president’s residence, a warrant was sought, with procedural assurances to ensure proper management of seized materials proffered.  

 

Notice of Filing by United States August 26 2022

[Redacted] Affidavit in Support of Application for Warrant Unsealed August 26 2022

[Redacted] Memorandum of Law Supporting Redactions Unsealed August 26 2022

[Redacted] Attachment Itemizing Redactions Unsealed August 26, 2022

 

 

Former President Challenges FBI Raid on Residence, While Magistrate Holds Affidavit in Support of Warrant Must be Disclosed


In the Matter of Search of Mar-a-Lago, 22-cv-81294 (S.D. Fl.).  Motion for Judicial Oversight and Additional Relief, August 22, 2022

In re: Sealed Search Warrant, 22-8332 (BER).  Order on Motions to Unseal, August 22, 2022.


Pursuant to a federal warrant, on August 8, 2022, Federal Bureau of Investigation agents searched for and removed materials from former President Donald Trump’s Florida residence.  Subsequently the former president was presented with a list of materials removed.  

Much speculation and discussion has attended this historic use of law enforcement personnel.  

The former president has raised Fourth Amendment challenges to the search of Mar-a-Lago.  Stressing that at all times documents relating to presidential records he was cooperative with federal authorities, he argues that the warrant itself was so nonspecific and overly broad as to offend the Fourth Amendment.

Moreover, the former president has moved for appointment of a Special Master to oversee the review of seized materials, arguing that a “clean team” of federal agents ought not be permitted to unilaterally conduct the review, and further arguing that the ‘receipt’ from the government is deficient in that it fails to describe fairly what was seized, precluding fair challenge to any review or disposition of seized materials. 

Although the scaffolding of the warrant has been disclosed, the affidavit has been withheld by the government, which has cited the personal safety of informants or witnesses and to potential disruption of ongoing investigations and proceedings.  Multiple media defendants have challenged that position, arguing that the public interest in this matter is sufficient to overcome the government’s interest in protecting sources and materials.

The magistrate judge who issued the warrant has agreed with the media intervenors, subject to any appropriate redactions, proposals for which he has invited the Department of Justice to submit by August 25.  

In re Matter of Search of Mar-a-Lago 22cv81294 (S.D. Fla.) Motion for Judicial Oversight and Additional Relief, August 22 2022.

In re Sealed Search Warrant 22mj08332 (BER) Order on Motions to Unseal August 22 2022.

Monitoring the Unblinking Mechanical Eye: Unlimited Static Pole Camera Surveillance of Personal Residence Requires Probable Cause and Warrant Under Massachusetts Constitution, State Supreme Court Concludes

Commonwealth v. Nelson Mora, SJC-12890 (August 6, 2020).

In investigating a drug distribution network, Massachusetts police installed video cameras on telephone and electric poles (“pole cameras”), some of which faced the homes of alleged drug distributors. 

Evidence from the video cameras, as well as other evidence, resulted in indictments.  Several defendants moved to suppress the pole camera evidence and the fruits thereof, arguing that evidence garnered in this way violated Article 14 of the Massachusetts Constitution and the Fourth Amendment of the U.S. Constitution.  

On interlocutory appeal from denial of defendants’ motion to suppress, the Supreme Judicial Court of the Commonwealth of Massachusetts concluded that protracted warrantless video surveillance violated the state constitution.  Having done so, the court declined to address the U.S. Constitutional issues.  

The court remanded the case to permit the trial court to determine whether probable cause supported the installation of the cameras surveilling the personal residences from the outset.

How it happened.  A confidential informant identified defendant Mora as a drug dealer. After a staged purchase of drugs, cameras were installed outside Moran’s and another defendant’s houses.  The cameras provided a view of the front of the house as well as the sidewalk and the adjacent street.  The cameras recorded continuously — for five months in Mora’s case –without audio and were static except for the capacity to zoom in and out.  The interior of homes could not be seen and no particular features permitted nighttime surveillance.  

The trial court found the surveillance unexceptional.  The trial judge denied defendants’ motions to suppress because the cameras captured only information in plain public view.  The cameras aimed at a fixed point and were not capable of capturing detailed activities and associations.  Observation of matters on public display traditionally does not carry a reasonable expectation of privacy and does not require a warrant.  The court concluded that pole cameras did no more than that.  

In de novo review of the central question whether the pole cameras’ surveillance were unconstitutional warrantless searches, the Supreme Judicial Court asked first whether there was a search.  A search may be unconstitutional if it intrudes upon an individual’s reasonable expectation of privacy, but no such expectation is ordinarily found where the observation is of matters in plain view of the publix. 

Pole cameras have been in use for several decades.  Other courts’ reviews have yielded mixed results. 

The court found it unnecessary to address federal issues and noted that the Massachusetts Constitution may afford more protections than the U.S. Constitution.  The court framed the central question is whether a defendant had a reasonable subjective expectation of privacy and whether society would recognize the expectation as unreasonable.  

The appellate court recognized that defendants had subjective expectations that their homes would not be subjected to extended surveillance.  There was no need to create barriers around the property to obtain constitutional protection.  Such a requirement would make the constitutional resource dependant, and an impermissible result, as the home is a castle no matter how humble.  (Slip Op. at 14.)

What society may recognize as objectively reasonable is a large and difficult question, the court opined, but noted that case law has recognized that extended surveillance without probable cause and judicial supervision is problematic.

Location, location, location…and duration. The duration and location of surveillance matters, the court found, making it possible to extend protection to protracted video recording of houses but not to public places, particularly as surveillance cameras are abundant there and in commercial venues.

The Founders’ Prescience. Protecting the home from government intrusion is the reason that federal and state constitutions were drafted as they were.  The promise that the sanctity of the home will not be needlessly or recklessly breached is historically significant, and the framers may be thanked for a prescience that precludes a contemporary Orwellian state.  (Slip. Op. at 22.)

The argument that pole cameras outside the home catch no more than a police officer might see must faile, as the very inexhaustibility of the machines negates comparison.

As heretofore it has not been thought necessary to obtain a warrant to conduct pole camera surveillance, the Supreme Judicial Court decided that remand to determine whether propane cause for use of the cameras existed at the time of installation, which might be established by review of existing evidence submitted in support of warrants that were obtained or by supplementary evidence if needed.  If probable cause existed for installation of all of the cameras, suppression of evidence must be denied, but if probable cause did not exist, suppression as to the cameras surveilling the homes only may be allowed. 

Commonwealth v. Mora, SJC 12890 (August 6 2020)

  

 

 

 

 

Surveillance Without Surcease: Massachusetts’ Highest Court to Review Constitutionality of Continuous, Warrantless Videorecording of Criminal Defendants’ Houses

Nelson Mora, et al. v. Commonwealth of Massachusetts, SJC-12890.  Oral argument scheduled for May 5, 2020.

Related:   Commonwealth v. McCarthy, SJC-12750.  Opinion issued April 16, 2020.


Defendants were arrested as part of an ongoing state effort to interrupt commerce in drugs.  As part of that effort, police installed, without warrants, video cameras in public spaces outside defendants’ houses.  These “poll cameras” permitted uninterrupted video recording of the outside of these houses and were equipped with zoom features to permit closer scrutiny.  

Defendants moved to suppress the video evidence as violative of the Fourth Amendment of the U.S. Constitution and Article 14 of the Constitution of the Commonwealth of Massachusetts.  The Superior Court denied relief, finding that defendants have no reasonable expectation of privacy in the exteriors of their homes, which were plainly visible to the world.

Interlocutory review was sought and granted.

Appellants/Defendants argue that incessant videorecording denies defendants’ constitutionally promised privacy interests, which are not defined with reference to brightline distinctions between exteriors and interiors, but rather with respect to the reasonable expectations of privacy enunciated in Katz v. United States, 389 U.S. 347 (1969).  Static, unceasing and warrantless mechanical surveillance is a search which intrudes beyond any reasonable bounds of police powers.  

Defendants are supported by several civil rights and technology advocacy entities, who join in characterizing the surveillance in issue as “Orwellian.”

The state stands firm in its view that that which is in plain view is not private, and that even if issues were to be found in these searches, error should be excused on the basis of the police’s good faith.

Just weeks ago the Supreme Judicial Court outlined constitutional parameters of static camera recordings of vehicles permanently placed at the ends of bridges linking the main land of Massachusetts with Cape Cod.   Following an extensive review of the foundational ideas that support the law of searches and privacy, and after concluding that the camera surveillance in issue could be a search, the court found no constitutional violation as the car in question could be seen without technology and any intrusion was of limited duration.   Chief Justice Gant wrote separately in concurrence, suggesting that the course going forward might be better served if authorizations based on reasonable suspicion and subsequent probable cause were obtained in advance of surveillance. 

Appellants/Defendants embrace McCarthy as pointing the way for a decision in their favor.  The state has tradition on its side: many considerations of poll cameras have found their use to be constitutionally innocuous, with only a few courts demanding that this form of surveillance  be cabinned by time limits.

Justlawful’s Observation.  The “in plain sight” argument offered by the state, if woodenly applied, could lead to results that would undermine Katz.  Moreover, the argument that recording shows only what a passerby might see becomes problematic if human rather than mechanical supervision were in issue.  Were a person to stand in observation of a residence without interruption, the homeowner or resident might well feel intruded upon, even if the onlooker could see only the exterior of the home, and might be justified in seeking injunctive relief to cause the behavior to cease.   

Briefs of the Parties

Commonwealth v. Mora – SJC-12890 Appellants’ Brief

Commonwealth v. Mora — Commonwealth’s Brief

Commonwealth v. Mora — Appellants’ Reply Brief

The McCarthy Decision

2020 04 16 Commonwealth v. McCarthy SJC-12750

For those fond of legal history, an 1890 Harvard Law Review article outlining Warren and Brandeis’ Views of Privacy

Warren and Brandeis, _The Right to Privacy_

 

 

 

 

 

 

He Fought the Law and the Law Won: Probable Cause Defeats First Amendment Claim for Retaliatory Arrest

Nieves v. Bartlett, No. 17-1174.  May 28, 2019.


Bartlett was arrested at a ‘raucous’ Arctic Man sports gathering following his initial refusal to speak with officers and subsequent discussion about an underage attendee. He was perceived by police to be aggressive. Bartlett sued the police under 42 U.S.C. Section 1983, claiming that the arrest was in retaliation for his exercise of First Amendment rights.

The Court noted that the question whether probable cause precludes retaliation claims in official policy cases has been left open.  Redress for deprivation of First Amendment rights may be sought if no non-retaliatory basis for official action exists. The critical question is one of “but-for” causation.  No action may proceed unless retaliation has governed any adverse action.

A retaliatory motive will not defeat official action if the official action would have occurred without the retaliatory motive.  Retaliatory arrest claims fail if no probable cause for arrest is shown. A defendant can success only if he or she can show arrest would follow even in the absence of probable cause.

The “no probable cause” rule will not preclude action where a claimant can show that others who were not engaged in protected speech were not arrested. If a vocal critic of police is arrested for jaywalking but others not engaged in protected speech are not arrested, a case can proceed.

In this case, the officer who observed Bartlett’s verbal aggression and body language could conclude a fellow officer was being challenged and perceived the existence of probable cause to arrest.  This defeats the First Amendment retaliation claim.

The Court agreed on the case outcome:  a plaintiff in a retaliatory arrest claim must show not just that retaliatory motive existed but that retaliatory motive caused the arrest.  

The Court was far from agreement on the finer points of its rule.  

Justice Thomas wrote separately to express wariness of the creation of an exception to the “no probable cause” rule, finding this holding to be without precedent in First Amendment jurisprudence.

Justice Gorsuch wrote to express concern that an “exuberant” criminal justice system would permit almost anyone to be arrested for something.  Deference to expansion of extensive state power would inhibit the exercise of constitutionally protected speech. In language certain to be quoted, he wrote:  “If the state could use these (expansive)laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

If probable cause cannot by itself defeat a First Amendment claim, and if there is no such requirement in the case law, then adding such a “no probable cause” requirement is a matter better suited for the legislature.  

To borrow from Fourth Amendment wrongful arrest claims to add requirements to first Amendment retaliation claims wanders too far.  Even if “arrest” is a common factor in both instances, Fourth and First Amendment protections are materially distinct.

Where the absence of probable cause is not an absolute requirement for a retaliation claim nor its presence a guarantor of defeat, probable cause is not irrelevant and may be important to establishing causation.  Determinations such as the Court has made in this case should await a more elaborately developed record and presentation.

Justice Ginsburg has dissented in part, noting that the absence of arrest authority can interfere with expression of speech and press rights. The breath of the majority ruling requesting establishment of lack of probable cause makes only baseless arrests actionable, thereby creating opportunities to abuse the exercise of protected rights.  

Justice Ginsburg would require that civil plaintiffs demonstrate unconstitutional animus as a motivating factor in arrest actions. Defendants may show that any resulting adverse action would have been taken without retaliation. The case before the court is not the proper cause to use to enlarge the potential for individuals and the press to be subjected to polices suppression.

Justice Sotomayor has observed that the Court has correctly determined that probable cause alone will not always defeat a First Amendment claim, but criticizes the needless annunciation of a rule which would allow probable cause to defeat retaliation claims unless others were not treated similarly. There is no need to separate First Amendment retaliatory arrest claims from other First Amendment Retaliation claims. There is no basis for the Court’s “mix and match” approach to constitutional law. The majority has determined, without substantial reason, that the law will benefit more from using comparators as evidence of motivations than it will from other forms of proof.  

Justice Sotomayor expressed fear that those who are more easily the objects of police scrutiny — citizen journalists, perhaps — will suffer arrest in the exercise of protected rights. Moreover, obscuring or defining away the role of statements and motivations further opens the door to abuse.

17-1174 Nieves v. Bartlett (05_28_2019)