Denise DeMartini v. Town of Gulf Stream, Florida

This Court has instructed that a plaintiff asserting an “ordinary” First Amendment retaliation claim under 42 U.S.C § 1983 must establish, among other elements, “but for” causation. Hartman v. Moore, 547 U.S. 250, 259-60 (2006) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). In the criminal law context, Plaintiffs must generally establish an additional causation element, a lack of probable cause for the act at issue, for allegedly retaliatory prosecutions or arrests, in light of the specific characteristics of these acts. Id.; see also Nieves v. Bartlett, 139 S. Ct. 1715, 1725 (2019). This Court has never extended such an additional requirement to allegedly retaliatory civil litigation by officials. 1. Did the Eleventh Circuit err in importing a “lack of probable cause” requirement for a First Amendment retaliation claim under 42 U.S.C § 1983 arising from an allegedly retaliatory civil lawsuit by a municipality?