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)

Ordinance Compelling AirBnB and HomeAway to Produce Business Records Each Month Preliminarily Enjoined as Violative of the Fourth Amendment, Southern District of New York Concludes

AirBnB, Inc. v. City of New York, No. 18-7712; HomeAway, Inc.  v. City of New York, No. 18-7742 (S.D.N.Y.) January 3, 2019.


The City of New York has enacted measures requiring online rental booking services to turn over their business records each month, a measure intended to limit the proliferation of short-term rentals.  The services have successfully sought preliminary injunctive relief on Fourth Amendment grounds.

No physical entry on the online booking providers’ premises is involved in the contemplated municipal demand for monthly records.  Nonetheless, the court found, the Fourth Amendment may be implicated without such a physical intrusion. Moreover, the federal court found, that the source of the intrusion lies within a municipal ordinance rather than an agent of the state does not remove the providers’ Fourth Amendment protections.  The critical issue is the intrusion upon the providers’ expectations of privacy.

The court declined to reach the booking services’ argument that the ordinance compelled speech in violation of the First Amendment, as the Fourth Amendment issue was perceived to be sufficient to support issuance of a preliminary injunction.

The case is one of a series of attempts to impose regulations sufficient to dissuade further proliferation of short-term rentals of properties through entities such as AirBnB and HomeAway.  Whether the plaintiffs will prevail in the long run remains to be seen For the moment, however, it is of note that the court was not hesitant in reading the Fourth Amendment generously and in keeping with emerging concepts of telecommunications and online privacy considerations, a position which may work to the betterment of privacy interests online for all.  

Equally of note is the notion of regulatory measures gathering business information as a substitute for zoning or other more traditional property rights enforcement devices.  Where physical boundaries are ceding their predominance to online invisible geography, such laws are worthy of attention, and to some, are cause for concern.

AirBnB v. City of New York (S.D,N,Y, 2019)

Getting to Know John Doe: Federal District Court in Connecticut Permits Pre-Discovery Conference Subpoena to Internet Service Provider to Obtain Disclosure of Alleged Infringer’s Name and Address

Malibu Media, LLC v. Doe, No. 18-CV-1510 (D. Conn.) November 2, 2018.


The United States District Court in Connecticut has granted Malibu Media’s request to subpoena an Internet Service Provider (ISP) to obtain disclosure of the name of an individual alleged to have infringed on Malibu Media’s copyright to films by downloading and distributing the films without authorization. Investigation identified use of an ISP address and a distribution program directly correlated in time and date to the infringing activity.  A subpoena was sought to compel the ISP provider to disclose the identity of the ISP address holder, without which Malibu Media would be without a means to protect its intellectual property interests.

The court noted that an alleged infringer cannot interpose the First Amendment right to anonymous speech to defeat the copyright owner’s legitimate interest in protecting his property.  Neither can an internet user complain of Fourth Amendment violations where he has voluntarily provided information to an ISP. Nonetheless, the court observed, as an infringer may find settlement preferable to public disclosure of alleged involvement in unlawful distribution of copyrighted pornography, the court cautioned Malibu Media that any information about the alleged infringer it might obtain could be used only for purposes of the case before the court.  Moreover, the subpoenaed ISP must in turn notify its subscriber of the subpoena, who would be permitted to move to quash the subpoena or to request to litigate the subpoena anonymously.

Malibu Media, LLC v. Doe (D. Conn., 2018)

Every Step You Take, Every Move You Make: Probationer Challenges Massachusetts’ Universal GPS Monitoring Mandate

Commonwealth v. Feliz, SJC No. 12545. Oral Argument September 5, 2018.


What law is in issue? In Massachusetts, any person convicted of certain enumerated sexual offenses must, as a condition of probation, wear a GPS monitor at all times.  Mass. Gen. Laws c. 265, § 47.

Why was this appeal filed?  In 2016, appellant Feliz pled guilty to possession and dissemination of child pornography.  Feliz challenges the statute mandating GPS monitoring as an ongoing unlawful search in violation of the Fourth Amendment of the U.S. Constitution and Article XIV of the Constitution of the Commonwealth of Massachusetts.  Feliz further submits that the statute serves no rehabilitative function. The inflexible mandate permits no individualized assessment of an offender’s risk. Additionally, the GPS equipment fails repeatedly, threatening his livelihood and inducing chronic anxiety.

What does Feliz seek? On appeal, Feliz objects not to the use of GPS but to its universal use, and seeks a ruling that the mandatory requirement is unsupportable where applied without exception or discretion.  Feliz wants courts to be able to waive the mandatory use of GPS for non-contact offenses where a judge determines that the risk of re-offense does not indicate GPS is necessary.

What was said at trial? Evidence was adduced at trial from experts and a probation officer that GPS monitors had no bearing on recidivism.  The trial judge, however, as of the view that the GPS monitoring itself was the cause of any reduction in recidivism.

Is GPS Monitoring a problem?  Feliz argues that because the attachment of a device to the body is a search, the state must show the search to be lawful, which requires weighing the intrusion against the government interests it promotes. The Supreme Court has recognized that GPS monitoring may be evaluated under the totality of the circumstances of its use.  Massachusetts’ constitution preclude the use of blanket threats of warrantless searches in probation. If the threat of blanket searches is not permissible, it follows that the actuality of blanket searches cannot survive constitutional scrutiny.

Diminished privacy is not extinguished privacy.  Universal GPS monitoring without considering individual needs cannot be said to contribute to rehabilitation, Feliz asserts.  Even if privacy interests are reduced on probation, they are not extinguished, even in the face of registration requirements. The GPS systems compromises different interests: the bodily integrity and location information of a person.  

The Social Freight of the Symbol.  Multiple failures of GPS devices not only impair the integrity of the wearer’s person, they also function as modern scarlet letters, enhancing stigma.

The Durable Information Warehouse.  The severity of the state’s creation of a repository of location information, extending to the home, cannot be sidestepped by asserting that the actual use of the information will not be as broad.  Feliz asserts that this is information gathering is particularly where the potential to access the location information endures, permitting the state to “time travel” through records, a circumstance raising the concerns of the Supreme Court in Carpenter v. United States, No. 16-402 (June 22, 2018).

Warrants Issue Without Judicial Review.  Feliz observes that the warrants that may issue where GPS monitoring indicates require no judicial intervention.  They may be issued on a probation officer’s say so, further eroding any remaining protections of a probationer’s interests.

A Measure Must be as Reasonable as it is Rational. That a measure may be rational does not make it reasonable, particularly as due process and search analyses are not the same.  Rational basis review proceeds from presumptive constitutionality, where warrantless searches proceed from presumptive unconstitutionality. The state must prove the need for such searches.  Judicial evaluation of searches need not defer to the legislature.

Of Course Children Must be Protected:  Will Universal GPS Montoring Accomplish this Goal? While the protection of children is a state interest of the highest order, the state has no evidence indicating that universal monitoring of non-contact offenders, without individual assessments of risk, serves that end.  Feliz’ monitor is incapable of triggering an alert if Feliz enters an area where an offense might occur. Moreover, special needs, such as avoiding drunk driving fatalities, that might justify heightened intrusiveness, are not present.

The State Has A Different Perspective

The State’s Interest in Inhibiting Crime.  The Commonwealth of Massachusetts submits that sex offenders have limited privacy interests and that GPS monitoring is reasonable and supports the state’s goal of protecting children.  

The GPS Information Gathered Effectively Serves the State’s Goal. The Commonwealth quotes extensively from the trial judge who observed that while it is true that the GPS system could not issue an alert if Feliz entered a prohibited school zone, information could be gleaned after the fact to determine whether he had been near the site of a crime.  The trial court noted that recidivism among sex offenders is lower than that of other criminals, and may be lower still for internet offenders. If antisocial traits are present, however, the potential to commit a contact offense is greater. Moreover, the attraction to children present in child pornography offenders would logically indicate a greater likelihood of a contact offense.  

What Little Is Known.  Empirical evidence is not extensive, but some studies indicate that GPS monitoring inhibits recidivism. The very knowledge that data is being gathered may be inhibiting, one expert has observed.  Moreover, because internet addresses include location information, the correlation of internet addresses with GPS location information may promote deterrence.  

Searches and Suspicions and Diminished Privacy Expectations. The Commonwealth distinguishes the cases relied on by Feliz by noting that the Massachusetts Supreme Judicial Court has permitted searches of probationers’ homes based on reasonable suspicion rather than probable cause.  The Fourth Amendment protection accorded the home exceeds that attaching to location, which is low to virtually non-extant for probationers on parole.

An Indelicate Balance. The intrusion upon an offender’s person is minor when compared to the gravity of sex offenses against children.  Offenders’ expectations of privacy are not the same as those who have not committed crimes. The very fact of being on probation limits privacy expectations in location information.

Rehabilitation is Fostered by Universal Electronic Monitoring.  GPS monitoring can be seen as integral to rehabilitative goals.  The need for child safety makes application of the special needs doctrine apt, for the search involved in GPS monitoring is specific.  The inhibitory impact of an offender’s’ knowledge that information is being monitored serves the rehabilitative goal of impeding re-offending.  This purpose is not diminished because information is retained: the potential for confirmation evidence serves the public interest in protection from sex offenders.  

Daily Life Goes On, with Minimal Inconveniences.  The severity of any invasion of  a probationer’s privacy through GPS is overstated:  cleanliness and other daily activities may be easily accomplished.  

Among Friends

To aid the Supreme Judicial Court in its review, the Massachusetts Association for the Treatment of Sexual Abusers and the Massachusetts Association of Criminal Defense Lawyers have jointly submitted an amicus brief urging the court to require individualized assessments in connection with applying or waiving GPS monitoring.  The Commonwealth’s Attorney General, on behalf of the state’s probation services, has submitted an amicus brief which provides the technical details and practices involved in GPS monitoring.

Case Materials:

SJC-12545_01_Appellant_Feliz_Brief

SJC-12545_03_Appellee_Commonwealth_Brief

SJC-12545_09_Amicus_MACDL_Brief

SJC-12545_06_Amicus_MA_Probation_Service_Brief

Oral Argument Webcast:

Suffolk Law Webcasts: SJC_12545