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Gonzalez v. Trevino

Issues

Does the Nieves probable cause exception to retaliatory arrest claims apply to all First Amendment retaliatory claims, or is it limited to individual retaliation claims when conducting “split second” arrests; and, if Nieves does apply all First Amendment retaliatory claims, what kind of evidence is required to satisfy its probable cause exception? 

This case asks the Supreme Court to determine whether the Mt. Healthy burden-shifting test about unconstitutional motives for government actions applies, or whether the Nieves bar to retaliatory arrest claims resulting from an arrest supported by probable cause applies in this case. Gonzalez maintains the Mt. Healthy holding covers all arrests except for retaliatory prosecutions and on-the-spot police arrests, while Trevino argues the Nieves exception applies to all First Amendment retaliatory arrest claims. Furthermore, in the event the Nieves bar does apply, the Supreme Court is asked to determine what kind of evidence is sufficient to rebut the probable cause presumption. Gonzalez maintains she is only required to show objective evidence, while Trevino maintains she needs to show “comparator evidence,” which is evidence of non-arrested people who engaged in similar conduct but not the same kind of protected speech. This case touches upon important questions of whether causes of action for retaliatory arrests deter police abuse or unfairly burden law enforcement, and how best to encourage First Amendment protected speech.

Questions as Framed for the Court by the Parties

(1) Whether the probable-cause exception in Nieves v. Bartlett can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether Nieves is limited to individual claims against arresting officers for split-second arrests.

In 2019, Petitioner Sylvia Gonzalez was elected to the Castle Hills, Texas, city council. Gonzalez v. Trevino, at 2. On May 21, she sat for her first city council meeting, where a town resident presented a petition that Gonzalez had helped create. Id. The petition “called for the removal of the city manager from office.” Id. The meeting stretched until May 22; once it ended, Gonzalez left her binder unattended to talk to a constituent.

Acknowledgments

The authors would like to thank Professor Brian Richardson for his guidance and insights into this case.

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Hartman v. Moore

Issues

If the government chooses to prosecute someone for a crime simply to retaliate for that  individuals  criticisms of the government, can that individual sue the investigating officers for retaliatory prosecution if the government's case, although retaliatory, was supported by probable cause?

 

William Moore was CEO of a company that manufactured optical scanning technology. In an effort to establish a sales contract for that technology with the United States Postal Service, Moore initiated a media and lobbying campaign that criticized the technology and policies the USPS had in place. It was later revealed that individuals involved in Moore's campaign had entered into two illegal payoff schemes, and, at the urging of the USPS, the government prosecuted Moore for involvement in those schemes. The government's case against Moore was quickly dismissed, and Moore brought a civil suit against the prosecutor and postal inspectors claiming they had prosecuted him to retaliate for his criticism of the USPS. After a series of hearings before trial and appellate courts, Moore's claim against the prosecutor has been dismissed and the Supreme Court must now decide whether the postal inspectors are immune from suit because the prosecution, although retaliatory, was supported by probable cause.

Questions as Framed for the Court by the Parties

Whether law enforcement agents may be liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, for retaliatory prosecution in violation of the First Amendment when the prosecution was supported by probable cause.

William Moore was CEO of Recognition Equipment, Inc. (REI), a company that specialized in optical scanning technology. Moore v. Hartman, 388 F.3d 871, 873 (D.C. Cir 2004) (Moore I).

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Kentucky v. King

Issues

In emergency circumstances, police may enter and search a private residence without a warrant. Does this exception apply when police create the emergency circumstances through their own lawful action, such as knocking on a door?

 

While pursuing a known drug felon, police officers smelled burning marijuana emanating from behind a closed apartment door. After knocking and announcing themselves, the police heard shuffling within the apartment. Believing that valuable evidence was being destroyed inside, they entered the apartment, found a variety of drugs and drug paraphernalia and arrested Respondent Hollis Deshaun King. King claims that this entry and search violated his Fourth Amendment rights because there was no exigent circumstance which permitted the officers to enter his apartment without a warrant. The Commonwealth of Kentucky asserts that the smell of burning marijuana, in addition to the sounds of shuffling and movement within the apartment, validated the police's warrantless entry. To decide this case, the Supreme Court will have to weigh privacy interests against the need for police officers to safely and effectively perform their duties.

Questions as Framed for the Court by the Parties

When does lawful police action impermissibly "create" exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist?

In October 2005, the police of Lexington-Fayette Urban County, Kentucky performed a “buy bust” operation in which a confidential informant attempted to buy crack cocaine from a suspected drug dealer. See King v. Kentucky, 302 S.W.3d 649, 651 (Ky.

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Lozman v. City of Riviera Beach, Florida

Issues

Does the existence of probable cause prevent a plaintiff from pursuing a retaliatory arrest claim against the government?

The Supreme Court will decide whether an individual can pursue a retaliatory arrest claim against the government for violating his First Amendment free speech rights, even though his arrest was supported by probable cause. Petitioner Fane Lozman argues that if a plaintiff who asserts a retaliatory arrest claim can establish a causal connection between his protected speech and the subsequent government action, the burden should then shift to the government to prove that it would have made the same decision even without the alleged animus. Lozman admits that the existence of probable cause may be sufficient for the government to meet its burden in some cases, but argues that a finding probable cause should not automatically defeat a retaliatory arrest claim. In contrast, Respondent City of Riviera Beach argues that probable cause should operate as an absolute bar to a retaliatory arrest claim. This case will clarify the government’s ability to arrest people suspected of committing a crime while engaged in protected speech and also the liability of government officials who allegedly encourage selectively arresting political dissidents for committing minor offenses.

Questions as Framed for the Court by the Parties

When a plaintiff claims that the government retaliated against his First Amendment-protected expression by arresting him, does the existence of probable cause operate as an absolute bar to his claim?

In March 2006, Fane Lozman moved his floating home to the Riviera Beach Marina. Lozman v. City of Riviera Beach, 681 F. App'x 746, 748 (11th Cir. 2017). Shortly after moving there, Lozman learned that the City of Riviera Beach (“Riviera Beach”) planned to redevelop the Marina.

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Messerschmidt v. Millender

Issues

Under what circumstances are police officers granted qualified immunity from civil lawsuits under 42 U.S.C. § 1983 for an illegal search if they relied on a facially valid warrant later determined to be invalid and overbroad?

Should the Court reconsider the standard that the presumption that an officer acted reasonably by obtaining a warrant can be rebutted by showing that the warrant was “so lacking in indicia of probable cause as to render official belief in its existence unreasonable”?

 

Petitioner, detective Curt Messerschmidt, obtained and executed a warrant to search Respondent Augusta Millender’s residence. Millender sued Messerschmidt and other law enforcement officers under 42 U.S.C. § 1983 alleging that Messerschmidt and other officers violated her Fourth and Fourteenth Amendment rights by executing an invalid search warrant and unreasonably searching her home. The court determined that the warrant was unconstitutionally overbroad. Messerschmidt contends that he is nonetheless entitled to qualified immunity from civil liability because he relied on a warrant and acted in good faith. Millender, on the other hand, maintains that the officers’ reliance on the warrant was unreasonable, and therefore, they are not entitled to qualified immunity. The decision will determine the scope of qualified immunity for officers who have, in good faith, relied on warrants later determined to be invalid.

Questions as Framed for the Court by the Parties

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon , 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335, 341, 344-45 (1986).

1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged over breadth in the warrant did not expand the scope of the search?

2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

Shelly Kelly decided to end her romantic relationship with Jerry Ray Bowen, but she feared that Bowen might become physically violent. See Millender v. Messerschmidt, 620 F.3d 1016, 1020 (9th Cir.

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Missouri v. McNeely

Tyler G. McNeely was arrested for drunk driving on October 3, 2010. After McNeely refused a breathalyzer and blood tests, Officer Mark Winder, acting without a warrant, directed hospital personnel to remove blood from McNeely. McNeely asserts that this action violated his Fourth Amendment right to be free from unreasonable searches and seizures. The State of Missouri responds that Winder’s action was constitutional because it fell into the “exigent circumstances” exception to the Fourth Amendment’s warrant requirement because the blood evidence was likely to be destroyed during the time it would take to obtain a warrant. McNeely also argues that bodily integrity is the core of the Fourth Amendment, that warrantless blood draws are unnecessary because other states have required warrants for blood draws and have not encountered difficulties enforcing DUI laws, and that judges and prosecutors overwhelmingly support warrants for blood draws. Missouri responds that blood testing is the best method of obtaining probative, relevant evidence of drunk driving, that blood draws typically involve little risk and pain, and that because alcohol naturally dissipates in a person’s bloodstream, evidence of drunk driving is continually destroyed.

Questions as Framed for the Court by the Parties

Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Issue

Is there an exception to the Fourth Amendment warrant requirement for forcibly drawing bl

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Reichle v. Howards

Issues

1. Whether one may make a First Amendment retaliatory arrest claim against one’s arresting officers if there was probable cause for one’s arrest.

2. Whether the court below erred by denying qualified and absolute immunity to Secret Service agents when the arrest they performed did not violate the Fourth Amendment.

 

Respondent Steven Howards criticized and touched Vice President Cheney while the Vice President was on a meet-and-greet at a local shopping center. Petitioners Virgil Reichle and Dan Doyle, two Secret Service Agents, confronted Howards, and subsequently arrested him for assault. However, the state prosecutor dropped the charges against Howards, who then brought a First Amendment retaliatory arrest claim against the Agents. The district court denied the Agents’ motion for summary judgment, ruling that the Agents could not benefit from qualified immunity under the circumstances. The Tenth Circuit affirmed. The Supreme Court must now resolve whether one may raise a First Amendment retaliatory arrest claim when there was probable cause for one’s arrest. A decision for Howards may deter law enforcement officers from making arrests for fear of retaliatory arrest claims, while a decision for the Agents may enable officers to more easily target and punish speech which they oppose.

Questions as Framed for the Court by the Parties

1. Whether, as the Tenth Circuit siding with the Ninth Circuit held here, the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether, as the Second, Sixth, Eighth, and Eleventh Circuits have held, probable cause bars such a claim, including under Hartman v. Moore, 547 U.S. 250 (2006).

2. Whether the Tenth Circuit erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent’s arrest, the arrest comported with the Fourth Amendment, it was not (and is not) clearly established that Hartman does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.

In 2006, Respondent Steven Howards visited the Beaver Creek Mall in Beaver Creek, Colorado to bring his older son to a piano recital. See Howards v. McLaughlin, 634 F.3d 1131, 1135 (10th Cir.

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United States v. Grubbs

Issues

Anticipatory search warrants can only be executed after the occurrence of a “triggering event,” such as when a suspect takes possession of contraband from an undercover agent. If that event occurs as anticipated prior to the search, must the suspect receive notice of the triggering condition during the search through express reference to the triggering event in the language of the warrant itself or in a supporting affidavit accompanying the warrant?

 

Anticipatory search warrants are used by law enforcement to gain permission to perform a search where the probable cause mandated by the Fourth Amendment does not yet exist. Instead, probable cause is expected to materialize through the anticipated conduct of the suspect, such as when a suspect takes delivery of an illegal item or receives payment for an illegal act. Currently, there is a split between federal circuits as to how much information must be provided about a party against whom such a warrant is served. In this case, the Ninth Circuit reiterated its position that the Fourth Amendment requires the warrant to enumerate plainly the triggering event, just as it requires a particular description of the place to be searched and persons or items to be seized. The Ninth Circuit believes anticipatory warrants are particularly vulnerable to abuses of police power, and requiring the warrant to articulate the triggering event allows citizens to ensure that such searches are lawfully executed. The government argues, and other Federal Courts of Appeal have agreed, that the Fourth Amendment contains no such requirement, and the unique aspects of anticipatory warrants are adequately shielded from abuse by existing probable cause requirements inherent in the warrant application process.

Questions as Framed for the Court by the Parties

Whether the Fourth Amendment requires suppression of evidence when officers conduct a search under an anticipatory warrant after the warrant’s triggering condition is satisfied, but the triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched.

The following Facts is derived from the United State’s Supreme Court Brief, see Brief of the United States as Petitioner, and the Ninth Circuit’s amended opinion, see United States v. Grubbs, 377 F.3d 1072 (9th Cir. 2004).

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Virginia v. Moore

 

In 2003, Virginia police stopped David Moore for driving on a suspended license. The officers then violated Virginia law by arresting Moore instead of issuing a summons. A follow-up search revealed cash and cocaine in Moore's pockets. Moore moved to suppress this evidence on grounds that the illegal arrest made the search unreasonable under the Fourth Amendment. Virginia responded that while Moore's arrest violated state law, the search was reasonable under the U.S. Constitution because it was incident to an arrest based on probable cause that he committed a crime. The trial court found the search constitutional and convicted Moore on drug charges. The Virginia Court of Appeals initially reversed but reinstated the conviction after hearing the case en banc. The Supreme Court of Virginia reversed the conviction, and Virginia appealed to the U.S. Supreme Court. This case could affect many state laws concerning civil liberties and the way in which police think about illegal arrests.

Questions as Framed for the Court by the Parties

Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law?

In 2003, police in Virginia were discussing over the radio that someone nicknamed "Chubs" (David Lee Moore) was driving in the area. Moore v. Commonwealth, 622 S.E.2d 253, 255 (Va. Ct. App. 2005), rev'd, 636 S.E.2d 395 ( Va. 2006), cert. granted, 128 S. Ct. 28 ( U.S. Sept. 25, 2007) (No.

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