Kyler Newby v. Gabriel J. Bassford

A claim for First Amendment retaliatory arrest is typically not actionable unless the plaintiff proves the absence of probable cause. Nieves v. Bartlett, 587 U.S. 391, 403 (2019). Additionally, qualified immunity bars a retaliatory arrest claim unless the plaintiff demonstrates that the First Amendment right was so clearly established that any reasonable officer would know there was no probable cause to make an arrest. Reichle v. Howards, 566 U.S. 658, 664 (2012). Here, the petitioner (a police officer) arrested the respondent (an individual filming the officer) for trespassing on private property. The respondent sued the petitioner for Fourth Amendment false arrest and First Amendment retaliatory arrest. The district court ruled that qualified immunity barred the false arrest claim because an objective police officer could have reasonably but mistakenly believed there was probable cause to arrest the respondent. Despite that finding, the court denied qualified immunity on the retaliatory arrest claim. On appeal to the Ninth Circuit, a divided panel held that even if the petitioner acted reasonably but perhaps mistakenly in arresting the respondent—what many lower courts call arguable probable cause—the petitioner was not entitled to qualified immunity on the retaliatory arrest claim. This holding is contrary to decisions in the Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits. The question presented is whether a police officer is entitled to qualified immunity from a retaliatory arrest claim when the officer could have reasonably but perhaps mistakenly believed there was probable cause for the arrest, and the Nieves exception does not apply.