Objections to Objective Evidence: How the Courts Should Scrutinize Officer Motive in Retaliatory Arrest Claims

Until this year, jaywalking was illegal in New York City. Yet, it would be quite a challenge to find a New Yorker who never jaywalked before 2025. [1] While low-level offenses like jaywalking or littering can be cause for arrest, police officers typically exercise personal discretion in deciding whether to pursue such cases. As affirmed by Justice Gorsuch in Nieves v. Bartlett, “no one doubts that officers regularly choose against making arrests, especially for minor crimes, even when they possess probable cause [for arrest].” [2] This subjective arrest standard can allow for the infiltration of personal bias into arrestmaking decisions. In these cases, someone may face arrest not solely because of their illegal conduct, but because of their expression. For example, a police officer who typically does not arrest for jaywalking may be incentivized to arrest a jaywalking civilian wearing a political slogan that the officer disagrees with. 

The Supreme Court has long recognized that arrests conducted in retaliation against expression are unconstitutional, as they “[threaten] to inhibit exercise” of the First Amendment. [3] The power to arrest, intended to maintain public safety, can instead be wielded as a mechanism to suppress disfavored viewpoints and thus violate constitutional rights. Although the unconstitutionality of retaliatory arrest is undisputed, courts continue to wrestle with how to identify arrests as such. To find a First Amendment violation, courts must judge whether an arrest was truly retaliatory or simply an act of law enforcement. Two problems exist here. On one hand, in making such a determination, courts must ensure that they do not interfere with lawful arrests by making retaliatory arrest claims too easily attainable. On the other hand, they must vigorously protect the First Amendment and strike down any impediments to free democratic debate. In its historical attempts to strike this balance, however, the Supreme Court has erred too far in favor of arresting power. By placing an unrealistic burden of proof on the plaintiffs of retaliatory arrest claims and limiting judicial analysis to objective evidence, such as arrest records, the Supreme Court has established a remarkably narrow standard to determine whether an arrest constitutes a First Amendment violation. Rather, to better protect the constitutional right to free speech, retaliatory arrest cases should also consider subjective evidence of officer motive—in particular, officer behavior.

In Mt. Healthy City School District Board of Education v. Doyle, the Supreme Court held that a plaintiff alleging a First Amendment retaliation claim must show that their protected speech was a “motivating factor” behind the defendant’s adverse action. [4] If the plaintiff succeeds in demonstrating this, then the burden of proof shifts to the defendant, who must show that they would have taken the same action, regardless of the plaintiff’s protected conduct. When evaluating a retaliatory prosecution claim, the Court in Hartman v. Moore tacked another condition onto the Mt. Healthy test: the plaintiff must show that their prosecution lacked probable cause. [5] In other words, Hartman established that the existence of a probable cause for arrest ruled out a retaliatory arrest claim altogether. 

In Nieves v. Bartlett, Russell Bartlett sued two police officers who he alleged arrested him in retaliation for his expression, namely his refusal to speak with Officer Nieves and his intervention in Officer Weight’s conversation. The officers claimed that they arrested Bartlett, not for his expression, but for his interference in their investigation, and alleged that he had physically confronted Officer Weight. [5] In evaluating the nature of Bartlett’s arrest, the Court in Nieves found that Hartman’s no-probable-cause standard alone was underprotective of free speech. [6] By making the existence of probable cause and retaliatory arrest mutually exclusive, the Court in Hartman failed to recognize that retaliatory motives can still govern lawful arrests. As Justice Gorsuch observes in Nieves, “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.” [7] By allowing the presence of probable cause to defeat retaliatory arrest claims, Hartman allowed wide-reaching criminal laws to weaken First Amendment protections. In the Nieves opinion, Chief Justice Roberts brings up the jaywalking example again. The no-probable-cause standard would not protect someone who is arrested after loudly complaining about police conduct while jaywalking—even though common sense suggests that this arrest was likely retaliatory in nature. [8] In light of this, while extending the Hartman rule to apply to retaliatory arrest claims, the Court in Nieves identifies a “narrow” exception: a plaintiff can prove retaliatory arrest if they can present “objective evidence” that they were “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” [9] In other words, a plaintiff must compare their case to previous cases by presenting objective evidence that their arrest is atypical. Such evidence typically involves arrest records and quantitative data—evidence that does not require subjective behavioral analysis. This exception is meant to account for situations involving petty crimes, where a probable cause exists but typically does not induce arrest. In effect, Nieves established that a plaintiff can demonstrate retaliatory arrest in two ways: they may either demonstrate lack of probable cause or, when the offense in question does not typically warrant arrest, they may present objective evidence that similarly situated individuals were not arrested.

Although the Supreme Court in Nieves aimed to reinforce First Amendment rights, the exception outlined places an excessive and unrealistic burden of proof on the plaintiff. The Nieves exception was first employed in Gonzalez v. Trevino, when Castle Hills city council member Sylvia Gonzalez was arrested in 2019 for violating a Texas statute forbidding the intentional removal of a governmental record by keeping a petition in her binder. [10] Gonzalez alleged that she had been arrested in retaliation for having organized and circulated the petition, which advocated for the city manager’s removal. She succeeded in activating the Nieves exception by submitting the past decade of the county’s misdemeanor and felony data, demonstrating that the Texas anti-tampering statute had never been used in a criminal charge similar to hers. [11] Despite her success, Gonzalez’s case illuminates why the Nieves exception is too narrow. Although Gonzalez was successful in demonstrating atypical arrest, as a city council member and public official, she was unusually positioned to access arrest records. Even more importantly, not all retaliatory arrest cases may be as easily comparable as Gonzalez’s was. As University of Chicago law professors Alison Siegler and William Admussen observe, “it is impossible to identify a particular individual whom the police did not target or investigate, because it is impossible to prove a negative.” [12] The same logic applies to retaliatory arrest claims. The Supreme Court asks plaintiffs to prove that similar arrests did not occur. However, the police do not keep records of arrests they decided not to make. Thus, it is exceptionally hard for plaintiffs to meet this standard of evidence—there is no concrete data that they may present. [13] Rather, they must sift through a slew of data to demonstrate the absence or scarcity of a singular data point. In carving out the Nieves exception, the Court demands of plaintiffs that they comb through a haystack to confirm that there is no needle.

Further, by considering only objective, comparison-based evidence, the Supreme Court declines to evaluate legitimate evidence of officer motive. By the Court’s ruling, “the statements and motivations of the particular arresting officer are ‘irrelevant’” in evaluating whether an arrest was retaliatory. [14] As opposed to evaluating officer speech and behavior, which requires some level of individual interpretation and may be subject to bias, tallying arrest records is an objective process. In theory, this would exclude subjective interpretation and facilitate a more evenhanded judicial evaluation of retaliatory arrest claims. However, as Justice Sotomayor observes in her Nieves dissent, a complete rejection of subjective evidence renders even “unassailable proof of an officer’s unconstitutional statements and motivations” useless. [15] No matter how damning, an arresting officer’s behavior cannot be used to demonstrate intent.

The Court defends its rejection of subjective analysis by pointing to its historical application of the Fourth Amendment. When evaluating Fourth Amendment claims that allege unreasonable searches and seizures without probable cause, the Supreme Court has “almost uniformly rejected invitations to probe subjective intent.” [16] However, the Court analogizes to the wrong amendment. Nieves and other retaliatory arrest claims present not a Fourth Amendment problem, but a First Amendment one. As Justice Gorsuch argues in his partial dissent, retaliatory arrest claims aren’t waged against officers that made arrests without lawful authority, but against officers who “abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.” [17] The Fourth Amendment does not apply because what is at issue is not unauthorized arrests, but rather authorized arrests that were motivated by unconstitutional reasons—namely, in violation of the First Amendment. To capture the role of intent in retaliatory arrest claims, Justice Gorsuch makes a more apt analogy to the Fourteenth Amendment, where “a detention based on race, even one otherwise authorized by law, violates the Fourteenth Amendment’s Equal Protection Clause.” [18] Thus, the Court’s defense of its exclusion of subjective evidence falls short.

In many cases, subjective evidence of officer motive is crucial to illuminate the retaliatory nature of an arrest. In Murphy v. Schmitt, Mason Murphy alleged that Officer Michael Schmitt arrested him in retaliation for protected speech. Murphy had been walking alongside traffic, rather than against traffic, which “generally violates” Missouri law. [19] When Officer Schmitt stopped Murphy and demanded identification, Murphy refused and asked the reason for his arrest. After a nine-minute argument, Officer Schmitt handcuffed Murphy and told him he was being arrested for “failure to identify.” Officer Schmitt then proceeded to make a phone call where he referred to Murphy as a “dip shit” who “would not identify himself” and “ran his mouth off.” He then asked the man on the other side of the phone, “What can I charge him with?” Murphy was eventually let free with zero charges [20]. Even if probable cause for arrest did exist, given that Murphy was walking against traffic, Officer Schmitt’s phone call betrays his ignorance of any such probable cause. If Officer Schmitt was clearly unaware of why he could arrest Murphy, not only should the existence of probable cause be irrelevant, but Murphy should not need to prove atypical arrest. Rather, the so-called subjective evidence of Officer Schmitt’s retaliatory motive in arresting Murphy should suffice to prove a First Amendment retaliation. However, the District Court for the Western District of Missouri dismissed Murphy’s case, concluding that because Officer Schmitt “had probable cause to arrest Murphy [for] walking on the wrong side of the road and refus[ing] to identify,” a retaliatory arrest claim could not be made. [21] Murphy appealed and although a divided 8th Circuit affirmed the District Court’s dismissal, the Supreme Court vacated the decision and remanded for reconsideration in light of its Gonzalez decision. [22] The case now sits on the 8th Circuit’s docket. 

As a claim that is based entirely around the officer’s arresting motive, it is logically inconsistent that the courts may not consider evidence of officer motive in its evaluation of retaliatory arrest claims. If the Supreme Court finds itself once again confronted by Murphy, or by any other retaliatory arrest claim, it should widen its atypical arrest exception to include consideration of direct evidence. This would also aid plaintiffs whose cases would otherwise be defeated by the insurmountable burden of presenting affirmative evidence of a negative (i.e., the absence of arrest records). While objective evidence only requires analysis, subjective evidence introduces the variable of interpretation, which may be more prone to bias. Yet as Justice Sotomayor writes in her Nieves dissent, “That is true of most unconstitutional motive claims, yet we generally trust that courts are up to the task of managing them.” [23] It is the job of the judicial branch to clarify opaque matters. As heavy of a burden as this may be, it should not be up to the plaintiff to pick up the slack.

Edited by Emma Listgarten and Noelle Shih

[1] Zinnia Maldonado, “Jaywalking officially legalized in New York City. Here's what it means for pedestrians,” CBS News, October 30, 2024, https://www.cbsnews.com/newyork/news/jaywalking-legalized-in-nyc/.

[2] Nieves v. Bartlett, 587 U.S. 391, 395 (2019).

[3] Crawford-El v. Britton, 523 U. S. 574, 588 (1998).

[4] Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 284 (1977).

[5] Hartman v. Moore, 547 U.S. 250 (2006).

[6] Nieves, 587 U.S. at 392.

[7] Nieves, 587 U.S. at 391.

[8] Nieves, 587 U.S. at 404.

[9] Nieves, 587 U.S. at 394.

[10] Gonzalez v. Trevino, 602 U.S. 653, 654 (2024).

[11] Gonzalez, 602 U.S. at 656.

[12] Alison Siegler & William Admussen, “Discovering Racial Discrimination by the Police,” Northwestern University Law Review 115, No. 4 (2021): 992.

[13] Brenna Darling, “A (Very) Unlikely Hero: How United States v Armstrong Can Save Retaliatory Arrest Claims After Nieves v Bartlett,” The University of Chicago Law Review 87, No. 8 (2020).

[14] Nieves, 587 U.S. at 394.

[15] Nieves, 587 U.S. at 428.

[16] Nieves, 587 U.S. at 392.

[17] Nieves, 587 U.S. at 416.

[18] Nieves, 587 U.S. at 417.

[19] Murphy v. Schmitt, 959 F.4d 558, 559 (8th Cir. 2025).

[20] Murphy, 959 F.4d at 559.

[21] Murphy, 959 F.4d at 562.

[22] Murphy, 959 F.4d at 564.

[23] Nieves, 587 U.S. at 429.