Denise DeMartini v. Town of Gulf Stream ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14177
________________________
D.C. Docket No. 9:16-cv-81371-DMM
DENISE DEMARTINI,
Plaintiff-Appellant,
versus
TOWN OF GULF STREAM,
WANTMAN GROUP, INC.,
ROBERT A. SWEETAPPLE,
Defendants-Appellees,
RICHMAN GREER, P.A.,
GERALD F. RICHMAN,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 21, 2019)
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Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.
HULL, Circuit Judge:
Plaintiff Denise DeMartini appeals the district court’s grant of summary
judgment (1) to the defendant Town of Gulf Steam, Florida on her First
Amendment retaliation claim brought under 42 U.S.C. § 1983 and (2) to the
defendant Wantman Group, Inc., a government contractor, on her malicious
prosecution claim brought under Florida law.
To place this appeal in context, we begin with what happened in a prior
lawsuit and appeal involving the same parties here. See Town of Gulf Stream v.
O’Boyle, 654 F. App’x 439 (11th Cir. 2016) (unpublished).
I. PRIOR LAWSUIT AND APPEAL
The Town of Gulf Stream (“the Town”) is a “tiny town of under 1,000
residents and just 17 full time employees” in Palm Beach County, Florida. Id. at
441. In their prior lawsuit, the Town and its contractor, the Wantman Group Inc.
(“Wantman”) sued Denise DeMartini (the plaintiff here), Martin O’Boyle, and
others under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. §§ 1962(c), 1964(c), for a fraud and extortion scheme. Id. at 440–42.
O’Boyle resides in the Town. From 1984 until 1995, and then again from
2003 to 2015, DeMartini worked for O’Boyle’s real estate company, CRO Realty,
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Inc. O’Boyle was DeMartini’s direct supervisor and described her as his “left
hand” woman.
At the direction of O’Boyle, Citizens Awareness Foundation, Inc. (“CAFI”)
was created as a not-for-profit corporation, whose stated purpose included testing
and enforcing municipalities’ compliance with Florida public records law.
O’Boyle was the sole funder of CAFI and he used it as a tool to file thousands of
public records requests to the Town under Florida’s public records law. Plaintiff
DeMartini worked as CAFI’s Treasurer and later Director. O’Boyle’s CRO Realty
paid DeMartini for her work on behalf of CAFI.
In the prior lawsuit, the Town alleged that plaintiff DeMartini, O’Boyle, and
others “pummeled the town with nearly 2,000 public records requests, many of
them frivolous, with no intention of actually reviewing the results.” Id. The Town
also alleged that, if the Town failed to timely respond then the O’Boyle Law Firm
would sue the Town, allegedly “engag[ing] in a pattern of frivolous litigation
activity.” Id. at 441, 444. The O’Boyle Law Firm was formed by O’Boyle’s son,
funded by O’Boyle, and was in the same building as O’Boyle’s real estate
company. Here is how O’Boyle and DeMartini orchestrated their scheme through
CAFI.1
1
In the prior lawsuit, this Court stated that “[w]e derive these facts from the complaint’s
well-pled allegations, which we accept as true for purposes of the motions to dismiss.” Gulf
Stream, 654 F. App’x at 441 n.2.
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A. First Step: Public Records Requests
As its first step, CAFI would issue public records requests “on a grand
scale” to the Town, pursuant to Florida’s Public Records Act, Fla. Stat. § 119.07.
Id. at 444. Specifically, § 119.07 provides that a custodian of a public record, such
as the Town, (1) shall permit the record to be inspected and copied, at any
reasonable time, under reasonable conditions, (2) must acknowledge requests to
inspect or copy records promptly, and (3) must respond to such requests in good
faith. Fla. Stat. § 119.07(1)(a), (c).
As relevant here, CAFI sent the Town “nearly 2,000 public records
requests.” Gulf Stream, 654 F. App’x at 441–42. These public records requests
were deliberately vague and ambiguous in order to induce a violation of § 119.07.
See id. Our prior decision listed examples of CAFI’s requests as production of:
(1) “All email addresses created or received by the Town of Gulf
Stream”;
(2) “All phone numbers in the [T]own’s records”; and
(3) “Any and all records containing a social security number.”
Id.
One of CAFI’s requests went to Wantman, a contractor of the Town. Id. at
442. Florida’s public records law applies also to private entities, such as
Wantman, that contract with government agencies. See Fla. Stat. § 119.0701.
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CAFI sent Wantman a public records request by e-mail, which directed that a
response be sent to this e-mail address: Vendor.Contract.Publishing@gmail.com.
Citizens Awareness Found., Inc. v. Wantman Grp., Inc., 195 So. 3d 396, 397–98
(Fla. Dist. Ct. App. 2016). CAFI’s request was sent to the e-mail address of Robin
Petzold, the consultant on the government contract, with the additional language
“DidTheyReadIt.com” attached at the end of her e-mail address, rendering the
e-mail address unrecognized by Wantman’s computer network. Id. at 397–98,
401.2 The subject line of the e-mail stated that it was a public records request, and
it indicated that it was sent from “An Onoma.” Id. at 398. The e-mail’s suspicious
appearance led Petzold to believe that it was illegitimate and spam, and she did not
respond to it. Id. at 401.
B. Second Step: State Lawsuits Filed
The second step of CAFI’s strategy involved the O’Boyle Law Firm’s filing
many lawsuits. If the Town or Wantman did not respond promptly or adequately
to the public records requests, CAFI, through the O’Boyle Law Firm, would
threaten litigation, or actually file a lawsuit, against the Town or another entity.
CAFI, through the O’Boyle Law Firm, would demand unreasonable settlements,
which included excessive amounts of attorney’s fees and costs. Gulf Stream, 654
2
Neither the government contract nor Wantman’s website identifies Petzold as a
custodian of public records. Citizens Awareness, 195 So. 3d at 401.
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F. App’x at 441. The demands were based on threats that CAFI would initiate
expensive and burdensome litigation or make pending litigation more expensive
and burdensome. Id. The end game of the scheme was not to have the Town’s
public records actually released, but to obtain attorney’s fees for the O’Boyle Law
Firm. Id.
In that regard, Florida’s Public Records Act, Fla. Stat. § 119.12, contains an
attorney’s fees provision that potentially applied when CAFI filed its lawsuits
against the Town to enforce the production of public records. Section 119.12
provides that the state court shall award the reasonable costs of enforcement,
including reasonable attorney’s fees, against the custodian if the state court
determines that: (a) the custodian unlawfully refused to permit a public record to
be inspected or copied; and (b) the complainant provided written notice identifying
the public record request to the custodian at least five business days before filing
the civil action. Fla. Stat. § 119.12(1)(a), (b). “Unlawful refusal under [§] 119.12
includes not only affirmative refusal to produce records, but also unjustified delay
in producing them.” Yasir v. Forman, 149 So. 3d 107, 108 (Fla. Dist. Ct. App.
2014) (quotation omitted).3 In short, if the Town or Wantman did not promptly
3
As discussed later, the complainant does not recover attorney’s fees (and instead has to
pay attorney’s fees) if the state court determines that the complainant requested to inspect or
copy a public record or participated in the civil action for an “improper purpose.” Fla. Stat.
§ 119.12(3). And “improper purpose” means a request to inspect or copy a public record or to
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respond in five days, CAFI would file a lawsuit and demand attorney’s fees. And
it was the policy and practice of the O’Boyle Law Firm to demand settlement of
cases with a provision for attorney’s fees in excess of the fees actually incurred by
the O’Boyle Law Firm for the cases.
As an example of the abusive litigation, in May 2014, when Wantman failed
to respond to CAFI’s e-mail request for records within the required time frame,
CAFI filed suit after waiting merely 18 days and demanded several thousand
dollars to settle the claim.4 Citizens Awareness, 195 So. 3d at 401. After the suit
was filed, Wantman voluntarily provided the requested records. Id. at 398.
Nevertheless, CAFI persisted with the lawsuit. Id. at 397. The Florida state court
concluded that Wantman’s delay in providing the records was not so unjustifiable
that it amounted to an unlawful refusal to provide the records to justify an award of
attorney’s fees. Id. at 397, 401. Affirming the trial court’s ruling, the Florida
appellate court noted that Wantman believed the request was “illegitimate” and
stated that “[t]he public records law should not be applied in a way that encourages
the manufacture of public records requests designed to obtain no response, for the
purpose of generating attorney’s fees.” Id. at 401.
participate in the civil action primarily to cause a violation of this chapter or for a frivolous
purpose. Id.
4
Gerald Richman and the law firm Richman Greer represented Wantman in that lawsuit.
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C. Joel Chandler’s Role in CAFI
In January 2014, O’Boyle recruited Joel Chandler to be CAFI’s Executive
Director. While acting as CAFI’s Executive Director, Chandler became convinced
that CAFI was being used for improper purposes and that the organization was
engaged in potentially fraudulent and illegal activities. As a result, Chandler
resigned from CAFI in June 2014, approximately five months after he accepted the
position.
Within a few days after resigning from CAFI, Chandler contacted Robert
Sweetapple, who was the Town’s special counsel handling the public records
requests. Chandler told counsel Sweetapple that he believed CAFI, O’Boyle, and
the O’Boyle Law Firm were victimizing the Town with their public records
activities, and that those activities involved criminal, fraudulent, and unethical
conduct. Chandler also disclosed this information to the Town’s attorney, Joanne
O’Connor, as well as to the media.
In July 2014, Chandler met with Sweetapple, the Town’s special counsel,
and provided Sweetapple with documents and a sworn statement detailing CAFI’s
fraudulent conduct. Chandler also gave Sweetapple a sworn video statement
concerning his involvement with CAFI, O’Boyle, and the O’Boyle Law Firm.
Chandler advised Sweetapple about CAFI’s two-step “windfall scheme” of (1)
issuing deliberately vague and ambiguous public records requests to the Town and
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other entities and (2) then demanding excessive amounts of attorney’s fees and
other costs to settle the dispute when the Town or other entities failed to respond to
the public records requests in a timely manner.
Chandler informed counsel Sweetapple that O’Boyle had orchestrated
hundreds of public records requests and directed the O’Boyle Law Firm to file
numerous lawsuits on behalf of CAFI, many times without Chandler’s
authorization. Chandler reported that the O’Boyle Law Firm had settled cases on
behalf of CAFI without having fee arrangements or contingency agreements in
place, without closing statements, and without providing any accounting of the
settlements to CAFI.
Chandler also explained that he became uneasy with DeMartini’s close
rapport with O’Boyle as well as her dual roles at the O’Boyle Law Firm and as a
director of CAFI. Chandler’s grievances against DeMartini included the
following: (1) she chastised him for not supplying the O’Boyle Law Firm with
sufficient cases from CAFI; (2) she worked with another employee to reject
Chandler’s pitch to refer CAFI’s litigation to law firms besides the O’Boyle Law
Firm; (3) CAFI adopted a policy that permitted DeMartini—a non-lawyer—to
authorize public records requests and litigation; and (4) she demanded that
Chandler produce a “minimum of 25 lawsuits” per week for the O’Boyle Law
Firm.
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After obtaining Chandler’s sworn statement, Sweetapple compared it to the
information he had already obtained through his own investigation and concluded
that Chandler’s account of CAFI’s “windfall scheme” was credible.
D. RICO Civil Suit
With all of this information in hand, the Town decided to take action. In
October 2014, the Town held a regular meeting of its Commission to consider
specific ways to thwart O’Boyle’s “malicious and frivolous lawsuits and public
records requests.” At the October 2014 meeting, the Town’s attorney, Joanne
O’Connor, advised the Commission that: (a) more than 1,500 public records
requests had been submitted to the Town since August 27, 2013; (b) the Town
believed that an overwhelming majority of those requests were submitted by
O’Boyle, one other prolific requester, or entities that they controlled; (c) these
requests resulted in 36 lawsuits against the Town; and (d) the requests had
“barraged” the small town staff and, since January 2014, the Town had spent
$370,000 in legal fees in defending those actions and responding to those requests.
At the October 2014 meeting, Scott Morgan, the Town’s Mayor, explained
that the Town was considering filing a RICO action and retaining attorney Gerald
Richman and his law firm, Richman Greer, as special counsel. At the meeting,
Richman introduced himself, explaining to the Town that he was a past president
of the Florida bar and an active trial lawyer with experience in RICO lawsuits.
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Richman encouraged the Town to file a RICO action against the O’Boyle Law
Firm, CAFI, and certain individuals. Richman stated that the “best way to
counteract” O’Boyle’s operation was to “file a RICO action in federal court.”
Richman explained that the RICO action would seek injunctive relief and damages
against the O’Boyle Law Firm, CAFI, and the individuals involved.
Mayor Morgan asked special counsel Richman about damages, and Richman
responded that a successful RICO action would provide for attorney’s fees and
damages related to the costs of defending the public records lawsuits. After
Richman discussed his fee arrangement, Thomas Stanley, a Town Commissioner,
asked Richman about other litigation costs. Richman explained that there would
be costs for depositions, interrogatories, and experts as the case progressed, but
initially the costs would be related to the complaint, service, and class certification.
Joan Orthwein, another Town Commissioner, asked special counsel Richman what
the overall cost of the RICO litigation would be, and Richman estimated that it
would cost between $20,000 and $25,000 in fees the first few months. Donna
White, also a Town Commissioner, asked Richman how long the RICO action
would last, but Richman did not speculate.
Mayor Morgan stated that the Town “ha[d] suffered enough” by expending
funds, time, resources, and morale and was encountering “difficulties [with]
retaining and hiring employees as a result of the scandalously malicious and
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frivolous lawsuits and public records requests filed by . . . O’Boyle under related
entities.” The Mayor explained that the Town could “either take the approach of
defending these individual cases as they come in, and bleed to death by a thousand
cuts, or . . . take steps necessary to stop those cases by advancing this case.” The
Mayor commented that there was a “conspiracy . . . to advance actions that
essentially do nothing other than shake down municipal agencies and related
contractors for funds” and “all the talk of open public access . . . is nonsense.” He
explained that “by putting a stop to it with this RICO action, we then put a stop to
the individual lawsuits on the public records requests.” The Mayor was
“confident” that the RICO lawsuit would stop the individual lawsuits and public
records requests.
Commissioner Orthwein responded, “I agree, because I don’t see an end just
defending one by one. I think we have to take it all as a group and go forward
because just defending is not doing anything. . . . I think it’s very important that we
just don’t bleed to death, we protect ourselves.”
After the discussion, the Commission voted to retain Richman and his law
firm, Richman Greer, as special counsel to represent the Town and to commence
the civil lawsuit. Richman also contacted Wantman about whether it would join
the RICO lawsuit. Richman had previously represented Wantman in other matters,
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including a prior public records lawsuit involving CAFI. Based on discussions
with Richman, Wantman decided to join the Town in the RICO civil suit.
On October 27, 2014, Sweetapple, as the Town’s special counsel, obtained
Chandler’s affidavit, which outlined the existence of O’Boyle’s “windfall scheme”
and DeMartini’s participation.
In February 2015, attorney Richman filed a civil complaint on behalf of the
Town and Wantman against O’Boyle, CAFI, DeMartini, and others, alleging
violations of RICO, 18 U.S.C. §§ 1962(c), 1964(c).5 In their complaint filed in
federal district court, the Town and Wantman, as named plaintiffs on behalf of a
putative class, alleged that the defendants (1) filed large numbers of frivolous
public records requests, which were often intentionally inconspicuous, (2) then
filed lawsuits when the requests were not addressed on time or otherwise, and
(3) then extorted their victims by demanding settlements, including payment of
their allegedly incurred attorney’s fees and costs, or face protracted litigation and
additional frivolous public records requests and lawsuits. The complaint alleged
the defendants’ pattern of frivolous public records requests and frivolous lawsuits
was extortionate under the Hobbs Act, 18 U.S.C. § 1951. The complaint also
5
Before and after filing the RICO suit in federal court, the Town also filed counterclaims
naming DeMartini and others as third-party defendants in eight pending state court actions that
had been brought against the Town by O’Boyle and others alleging violations of Florida’s public
records law.
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alleged that DeMartini was the self-appointed “key employee” for all of O’Boyle’s
companies, and that she “direct[ed] the flow of litigation” and “call[ed] the shots.”
Upon motion to dismiss by the defendants, the federal district court
dismissed the Town and Wantman’s class action RICO complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court
concluded that the defendants’ filing lawsuits, or even threatening to sue, did not
constitute a predicate act under RICO. In so ruling, the district court relied on
Eleventh Circuit precedent in Raney v. Allstate Ins. Co., 370 F.3d 1086, 1087–88
(11th Cir. 2004) (holding that the filing of a lawsuit did not state a claim for
extortion as a predicate act under RICO), and United States v. Pendergraft, 297
F.3d 1198, 1207 (11th Cir. 2002) (holding that neither the threat to litigate nor the
fabrication of evidence behind the threat of a lawsuit made the action “wrongful”
within the meaning of the Hobbs Act, and, thus, could not be a predicate act under
RICO).
On appeal, the Town and Wantman attempted to distinguish our above
precedent based on CAFI’s thousands of abusive public records requests, the large
volume of lawsuits actually filed or threatened to be filed, and the systematic use
of those lawsuits as part of the O’Boyle-led scheme to defraud with the intent to
deceive. Gulf Stream, 654 F. App’x at 444. This Court assumed that the
defendants had “engaged in a pattern of frivolous litigation activity while abusing,
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on a grand scale, their statutory right to request public documents from the
government.” Id. Ultimately, however, this Court affirmed the district court’s
dismissal of the Town and Wantman’s complaint. Id. at 445. We stressed that the
law encourages citizens to use the courts to redress wrongs and enforce rights,
including to resolve public records disputes. Id. at 443–44. Moreover, citizens
have a constitutional right to petition the government for redress under the First
Amendment. Id. This Court concluded that, regardless of the scope and scale of
the public records litigation, the courts are equipped with procedures to deal with
parties who file frivolous litigation. Id. Therefore, this Court determined that a
threat to file litigation against the government does not trigger liability under the
Hobbs Act. Id. at 443. Nonetheless, this Court characterized the activities of
CAFI, O’Boyle, and the O’Boyle Law Firm as “troubling.” Id. at 441.
Meanwhile, Mayor Morgan sent a letter to town residents regarding the
Town’s operating budget, including a planned increase in the Town’s budget for
legal fees. After describing the status of the RICO civil lawsuit, Mayor Morgan
said, “I have stated numerous times that if the litigants will discontinue their
lawsuits, I will recommend discontinuing our RICO action.” And when the Town
lost on appeal, Mayor Morgan conceded during a public hearing held in July 2016
that the Town’s RICO suit was “new to the law.” In filing the RICO suit, the
Town knew that it “would either prevail or expose the case.” But “something had
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to be done to try to stop the public record lawsuits that at that time numbered 53
against the Town.” Mayor Morgan also reported that the Town had not had a
public records lawsuit since the RICO action was filed.
E. DeMartini’s § 1983 Retaliation Case
Approximately two months after this Court affirmed the district court’s
dismissal of the Town and Wantman’s RICO civil action, DeMartini filed the
instant § 1983 action against them. In relevant part, DeMartini’s amended
complaint alleged that the Town and Wantman’s RICO lawsuit constituted
unlawful retaliation against her. Her amended complaint contained: (1) a First
Amendment retaliation claim under § 1983 against the Town; and (2) a malicious
prosecution claim under Florida law against Wantman.6
As to her § 1983 First Amendment retaliation claim, DeMartini alleged that
the speakers at the Town’s October 2014 Commission meeting made clear that the
Town was not concerned with the merits of its RICO lawsuit or its likelihood of
success. Rather, the Town’s sole motivation in voting for the RICO lawsuit was to
stop CAFI’s filing of public records lawsuits. DeMartini noted that, after this
Court affirmed the dismissal of the Town’s RICO complaint, Mayor Morgan
6
DeMartini’s amended complaint also alleged Florida malicious prosecution claims
against Richman and his law firm Richman Greer and slander per se claims against Sweetapple
and Richman. The district court granted summary judgment for these defendants. On appeal,
DeMartini does not raise these claims against these defendants, and, therefore, we do not address
them.
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admitted at a July 2016 Commission meeting that the Town’s RICO lawsuit served
its purpose because new public records lawsuits had not been filed, which “was
exactly what we tried to accomplish.”
DeMartini contended that she engaged in speech that was constitutionally
protected by associating with CAFI, which had filed the multiple public records
lawsuits against the Town. DeMartini alleged that: (1) the filing of these public
records lawsuits against the Town, at her direction, constituted constitutionally
protected activity; (2) the Town retaliated against her protected activity by filing
the RICO lawsuit; and (3) the Town’s retaliatory conduct adversely affected her
protected activity and caused her to incur substantial damages, primarily due to the
loss of her employment.
As to her Florida malicious prosecution claim against Wantman, DeMartini
alleged that Wantman disliked her petitioning the government by using Florida’s
public records law and weaponized the RICO suit as a means to punish her for that
expression. She claimed that Wantman sued her without having any evidence that
she had any involvement or participation in the extortionate scheme alleged in the
RICO complaint.
The district court denied the defendants’ motions to dismiss. Later, the
defendants moved for summary judgment on all claims and DeMartini filed a
cross-motion for partial summary judgment against Wantman. The district court
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granted the defendants’ motions for summary judgment and denied DeMartini’s
cross-motion against Wantman. The district court concluded the defendants had
probable cause to initiate a civil RICO lawsuit which precluded plaintiff’s § 1983
First Amendment retaliation claim and her Florida malicious prosecution claim.
DeMartini timely appealed. 7
II. SECTION 1983 FIRST AMENDMENT RETALIATION CLAIM
A. First Amendment
“A constitutional claim brought pursuant to § 1983 must begin with the
identification of a specific constitutional right that has allegedly been infringed.”
Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). Plaintiff DeMartini alleges
that the defendants violated her First Amendment rights—to make public records
requests and to bring lawsuits—by filing the RICO civil action against her in
retaliation for her exercising those First Amendment rights.
The First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech, or . . . the right . . . to petition the
government for a redress of grievances.” U.S. Const. Amend. I. The Amendment
We review a grant of summary judgment de novo and apply the same legal standards
7
that governed the district court’s decision. Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1293 (11th Cir. 2013). Summary judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Also, we may affirm for any reason supported by the
record, even if not relied upon by the district court. United States v. Al-Arian, 514 F.3d 1184,
1189 (11th Cir. 2008).
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protects “not only the affirmative right to speak, but also the right to be free from
retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v.
McGraw, 202 F.3d 676, 685 (4th Cir. 2000). “The First Amendment right to
petition the government for a redress of grievances includes a right of access to the
courts.” Bank of Jackson Cty. v. Cherry, 980 F.2d 1362, 1370 (11th Cir. 1993);
see Cal. Motor Transp. Co., v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct.
609, 612 (1972) (stating “[t]he right of access to the courts is indeed but one aspect
of the right of petition”). The right to petition the government for a redress of
grievances is “one of the most precious of the liberties safeguarded by the Bill of
Rights,” and is “high in the hierarchy of First Amendment values.” Lozman v.
City of Riviera Beach, Fla., 585 U.S. __, __, 138 S. Ct. 1945, 1954–55 (2018)
(internal quotation marks omitted) (quoting BE & K Const. Co., v. NLRB, 536
U.S. 516, 524, 122 S. Ct. 2390, 2395 (2002)); see also Connick v. Myers, 461 U.S.
138, 145, 103 S. Ct. 1684, 1689 (1983). The right to petition the government for
redress of grievances is such a fundamental right as to be “implied by ‘[t]he very
idea of a government, republican in form.”’ BE & K Const., 536 U.S. at 524–25,
122 S. Ct. at 2396 (quoting United States v. Cruikshank, 92 U.S. 542, 552 (1875)).
In short, a citizen’s public records requests and lawsuits against the government
can clearly constitute protected First Amendment activity.
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B. Elements of Retaliation Claim
To state a § 1983 First Amendment retaliation claim, a plaintiff generally
must show: (1) she engaged in constitutionally protected speech, such as her right
to petition the government for redress; (2) the defendant’s retaliatory conduct
adversely affected that protected speech and right to petition; and (3) a causal
connection exists between the defendant’s retaliatory conduct and the adverse
effect on the plaintiff’s speech and right to petition. Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir. 2005). 8
In § 1983 First Amendment retaliation cases, the Supreme Court has
recognized that retaliatory animus by a governmental actor is a subjective
condition that is “easy to allege and hard to disprove.” See Nieves v. Bartlett, 587
U.S. __, __, 139 S. Ct. 1715, 1725 (2019) (internal quotation marks omitted)
(quoting Crawford-El v. Britton, 523 U.S. 574, 585, 118 S. Ct. 1584, 1590 (1998));
see also Hartman v. Moore, 547 U.S. 250, 257, 126 S. Ct. 1695, 1702 (2006) (The
defendant inspectors argue that “a plaintiff can afflict a public officer with
disruption and expense by alleging nothing more, in practical terms, than action
8
When reviewing an official’s retaliatory conduct for adverse effect on protected speech,
we consider whether the Town’s alleged retaliatory conduct “would likely deter a person of
ordinary firmness from the exercise of First Amendment rights.” Bailey v. Wheeler, 843 F.3d
473, 481 (11th Cir. 2016). However, we have acknowledged that special concerns arise when an
official’s “own First Amendment rights are implicated” in the commission of an alleged
constitutional tort. Dixon v. Burke Cty., 303 F.3d 1271, 1275 (11th Cir. 2002).
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with a retaliatory animus, a subjective condition too easy to claim and too hard to
defend against.”). For this reason, courts have identified two general approaches to
retaliation claims against governmental actors, with the particular approach chosen
dependent on the type of alleged retaliation at issue. One approach, typically used
when a governmental employee claims that he was fired because he engaged in
First Amendment activity, looks to whether the defendant governmental
employer’s retaliatory motivation was the but-for cause of the adverse employment
decision. If not—that is, if the defendant would have taken the same action had
there not also been a retaliatory animus motivating that conduct—then the
defendant is not liable. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 285–87, 97 S. Ct. 568, 575–76 (1977); see Lozman, 585 U.S. at __, 138
S. Ct. at 1955.
The second approach—taken when the governmental defendant has utilized
the legal system to arrest or prosecute the plaintiff—has been to require the
plaintiff to plead and prove an absence of probable cause as to the challenged
retaliatory arrest or prosecution in order to establish the causation link between the
defendant’s retaliatory animus and the plaintiff’s injury. Nieves, 587 U.S. at __,
139 S. Ct. at 1726; Hartman, 547 U.S. at 260–61, 265–66, 126 S. Ct. at 1704,
1706–07.
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These four major Supreme Court precedents—Mt. Healthy, Hartman,
Lozman, and Nieves—expand upon the causal connection requirement in First
Amendment retaliation cases and are necessary background to our ultimate
conclusion. We start with the First Amendment retaliation decisions in Mt.
Healthy and Hartman.
C. 1977 Mt. Healthy: “But-For” Test When Retaliatory Employment
Actions are Alleged
Mt. Healthy involved a government employer’s discharge of a public
employee. Mt. Healthy, 429 U.S. at 276, 97 S. Ct. at 570. Specifically, in Mt.
Healthy, a city board of education (the “school board”) decided not to rehire an
untenured school teacher after various incidents indicating unprofessional
demeanor. Id. at 281–83, 97 S. Ct. at 573–74. One incident was a telephone call
the teacher made to a local radio station to report on a new school policy. Id. at
282, 95 S. Ct. at 573. The plaintiff teacher sued the school board, claiming that the
board’s refusal to renew his employment contract violated his First Amendment
rights. Id. at 276, 97 S. Ct. at 570. Because the school board did not suggest that
the teacher violated any established policy in making the call, the Supreme Court
accepted a finding by the district court that the call was protected speech under the
First Amendment. Id. at 284, 97 S. Ct. at 574.
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In Mt. Healthy, the Supreme Court went on to hold, however, that since the
other incidents, standing alone, would have justified the plaintiff teacher’s
dismissal, relief could not be granted to the teacher if the school board could show
that the discharge would have been ordered even without reference to the teacher’s
protected speech. Id. at 285–87, 97 S. Ct. at 575–76. In terms of precepts in the
law of torts, the Supreme Court held that even if retaliation might have been a
“substantial factor” or a “motivating factor” for the board’s decision not to rehire
the plaintiff, still there was no liability unless the alleged constitutional violation
was a but-for cause of the employment termination. See id.After a bench trial, the district court awarded reinstatement with backpay to
the plaintiff teacher. Id. at 276, 97 S. Ct. at 570. The Supreme Court vacated the
district court’s favorable judgment for the plaintiff teacher because, as to causation,
the district court should have gone on to determine whether the school board had
shown that “it would have reached the same decision as to [the plaintiff’s]
reemployment even in the absence of the [plaintiff’s] protected [speech].” Id. at
285–87, 97 S. Ct. at 575–76. Although the plaintiff had shown that his conduct
(the call) was protected speech and that his conduct was a substantial or motivating
factor in the school board’s decision not to rehire him, the school board was not
liable if it showed it would have reached the same decision in the absence of the
plaintiff’s protected speech. See id.23
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D. 2006 Hartman: First Amendment—Retaliatory Criminal Prosecution
Claims Require the Absence of Probable Cause
After adopting the “but for” test when a public employee alleges retaliation
by the governmental employer based on the employee’s protected First
Amendment activity, the Supreme Court addressed the test that should apply when
a citizen alleges that he or she has been criminally prosecuted in retaliation for
First Amendment activity. In Hartman, the Supreme Court recognized the
importance that the existence of probable cause plays in assessing causation in a
retaliatory prosecution claim and held that a viable retaliatory prosecution claim
requires the plaintiff to plead and prove the absence of probable cause. Hartman,
547 U.S. at 252, 265–66, 126 S. Ct. at 1699, 1707. The Supreme Court’s analysis
in reaching that holding is instructive.
The plaintiff in Hartman engaged in an extensive lobbying campaign
opposing a particular postal service policy. Id. at 252–53, 126 S. Ct. at 1699–
1700. The Postal Service criminally prosecuted the plaintiff for violating federal
statutes in that lobbying. Id. at 253–54, 126 S. Ct. at 1700. After being acquitted,
the plaintiff filed a § 1983 suit against the prosecutor and five postal inspectors,
alleging that they violated his First Amendment rights when they instigated his
criminal prosecution in retaliation for his criticisms of the Postal Service. Id. at
254, 126 S. Ct. at 1700.
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In Hartman, the Supreme Court held that, to establish the causal connection
required for a § 1983 First Amendment retaliation claim predicated on a retaliatory
criminal prosecution, a plaintiff must plead and prove more than the subjective
retaliatory animus of a government official and a plaintiff’s subsequent injury; the
plaintiff must also plead and prove the absence of probable cause for the
underlying retaliatory criminal prosecution. Id. at 260–61, 265–66, 126 S. Ct. at
1704, 1706–07.9
In reaching this conclusion, the Supreme Court reasoned that when the
claimed retaliation for protected First Amendment conduct is a criminal charge, a
constitutional tort action for retaliation will differ in two ways from the standard
First Amendment retaliation claim, such as a public employee’s claim that he was
fired for criticizing the government. Id. at 260, 126 S. Ct. at 1704. What is
different about a criminal prosecution case is that: (1) “the requisite causation
between the defendant’s retaliatory animus and the plaintiff’s injury is usually
more complex than it is in other retaliation cases, and the need to show this more
complex connection supports a requirement that no probable cause be alleged and
9
Prior to Hartman, both this Court and the Fifth Circuit had already held that the presence
of probable cause defeats a § 1983 First Amendment claim for retaliatory criminal prosecution.
See Wood v. Kesler, 323 F.3d 872, 882–883 (11th Cir. 2003) (concluding a plaintiff’s § 1983
claim for retaliatory criminal prosecution in violation of the First Amendment is “defeated by the
existence of probable cause”); Keenan v. Tejeda, 290 F.3d 252, 260 (5th Cir. 2002) (noting that
“retaliatory criminal prosecutions in violation of the First Amendment are actionable only if a
plaintiff can also prove the common-law elements of malicious prosecution, including the
absence of probable cause to prosecute”).
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proven”; and (2) “there will always be a distinct body of highly valuable
circumstantial evidence available and apt to prove or disprove retaliatory
causation, namely evidence showing whether there was or was not probable cause
to bring the criminal charge.” Id. at 261, 126 S. Ct. at 1704.
As to causation, the Supreme Court in Hartman explained that in retaliatory
criminal prosecutions, the causal connection is more complex because it “is not
merely between the retaliatory animus of one person and that person’s own
injurious action, but between the retaliatory animus of one person [the postal
inspector] and the action of another [the prosecutor].” Id. at 262, 126 S. Ct. at
1705. The Supreme Court also emphasized that “to the factual difficulty of
divining the influence of an investigator or other law enforcement officer upon the
prosecutor’s mind, there is an added legal obstacle in the longstanding presumption
of regularity accorded to prosecutorial decisionmaking.” Id. at 263, 126 S. Ct. at
1705. The Supreme Court concluded that the absence of probable cause was
needed to “bridge the gap between the nonprosecuting government agent’s [the
postal inspector] motive and the prosecutor’s action, and to address the
presumption of prosecutorial regularity.” Id. at 263, 126 S. Ct. at 1706.10 Thus,
10
The Supreme Court contrasted the dual actors in retaliatory criminal prosecution cases
with “the requisite causation in ordinary retaliation claims, where the government agent
allegedly harboring the animus is also the individual allegedly taking the adverse action.”
Hartman, 547 U.S. at 259, 126 S. Ct. at 1703.
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even when a government officer’s retaliatory animus is clear, it “does not
necessarily show that the [officer] induced the action of a prosecutor who would
not have pressed charges otherwise.” Id. at 263, 126 S. Ct. at 1705.
Ultimately, the Supreme Court in Hartman concluded: “Because showing an
absence of probable cause will have high probative force, and can be made
mandatory with little or no added cost,11 it makes sense to require such a showing
as an element of a plaintiff’s case, and we hold that it must be pleaded and
proven.” Id. at 265–66, 126 S. Ct. at 1707. Under Hartman, if there is probable
cause for the underlying criminal prosecution, then the § 1983 First Amendment
retaliatory criminal prosecution case ends as a matter of law. See id. The Supreme
Court, in effect, imposed an “‘objective’ fact requirement” on the plaintiff—to
plead and prove the absence of probable cause—in order to prove the chain of
causation from animus to injury. See id. at 258, 265–66, 126 S. Ct. at 1702, 1707.
E. 2018 Lozman: Holding That, Given the Unique Facts of the Case, the
Existence of Probable Cause Did Not Bar Lozman’s First Amendment
Retaliatory Arrest Claim
More recently, in Lozman, the Supreme Court examined whether the
existence of probable cause will also defeat a § 1983 First Amendment claim for
11
The Supreme Court found the plaintiff’s duty to plead and prove the absence of
probable cause would essentially be “cost free” because the issue of probable cause will be “an
evidentiary issue in practically all such cases.” Hartman, 547 U.S. at 265, 126 S. Ct. at 1707.
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retaliatory arrest.12 Lozman, 585 U.S. at __, __, 138 S. Ct. at 1951, 1955.
Although granting certiorari on that broad question, ultimately the Supreme Court
itself limited its Lozman decision to the particular facts in that case. Id. at __, 138
S. Ct. at 1955.
The Court first reviewed its own prior decisions in both Mt. Healthy and
Hartman and its prior stated reasons for them. See id. at __, 138 S. Ct. at 1952–53.
After doing so, the Court concluded that “[o]n facts like these, Mt. Healthy
provides the correct standard for assessing a retaliatory arrest” and plaintiff
“Lozman need not prove the absence of probable cause to maintain a claim of
retaliatory arrest against the City.” Id. at __, 138 S. Ct. at 1955. The Supreme
Court cautioned, however: “The Court need not, and does not, address the elements
required to prove a retaliatory arrest claim in other contexts.” Id. The Supreme
Court added “whether in a retaliatory arrest case the Hartman approach should
apply, thus barring a suit where probable cause exists, or, on the other hand, the
inquiry should be governed only by Mt. Healthy is a determination that must await
a different case.” Id. at __, 138 S. Ct. at 1954. The Court explained the reason
12
Previously in 2012, the Supreme Court granted certiorari on the question “whether a
First Amendment retaliatory arrest claim may lie despite the presence of probable cause to
support the arrest,” but the Supreme Court declined to address that question in that earlier case.
See Reichle v. Howards, 566 U.S. 658, 663, 132 S. Ct. 2088, 2093 (2012).
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was that “Lozman’s claim is far afield from the typical retaliatory arrest claim” and
“the mine run of arrests.” Id.Because the “unique” facts in Lozman drove that decision, we detail them.
See id. In Lozman, the plaintiff Lozman had filed a previous civil lawsuit
contending that the City violated the state’s open-meetings laws. Id. at __, 138
S. Ct. at 1949. In June 2006, the City Council held a meeting at which
Councilmember Wade suggested the City use its resources to “intimidate”
Lozman, who had filed the open-meeting lawsuit. Id. A different Councilmember
asked whether there was “a consensus of what Ms. Wade [was] saying” and others
responded in the affirmative. Id. Lozman alleged this formed an official plan to
retaliate against him. Id. On the other hand, the City maintained that the only
consensus reached during the meeting was to invest the money and resources
necessary to prevail in the litigation against it. Id.Five months later, in November 2006, plaintiff Lozman came to a City
council meeting and gave remarks about the recent arrest of a former county
official. Id. When Councilmember Wade directed Lozman to stop, he continued
speaking, this time about the arrest of a former city official in West Palm Beach.
Id. Councilmember Wade directed a police officer to “carry him out”—i.e., arrest
him. Id. at __, 138 S. Ct. at 1949–50. Before the Supreme Court, there was no
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dispute that the officer had probable cause to arrest the plaintiff for interrupting the
meeting. Id. at __, 138 S. Ct. at 1951.
Nonetheless, plaintiff Lozman alleged that the high-level City policymakers
in advance of the meeting had devised a retaliatory plan to arrest him because of
his open-meetings lawsuit against the City and prior public criticism of public
officials. Id. Pursuant to that alleged official policy, when Lozman spoke up at the
next council meeting, Councilmember Wade directed police officers to arrest him.
Id. at __, 138 S. Ct. at 1949–50. After a 19-day trial, the jury returned a verdict for
the City on all claims. Id. at 1950.
During the trial, the district court charged the jury that plaintiff Lozman
must “prove that the arresting officer was himself motivated by impermissible
animus against Lozman’s protected speech and that the officer lacked probable
cause to make the arrest.” Id. The district court “allowed the jury to decide
whether there was probable cause to arrest [Lozman] for the public-disturbance
offense.” Id. On appeal, this Court affirmed the verdict for the City because the
existence of probable cause defeated Lozman’s First Amendment retaliatory arrest
claim. Id. We also assumed that the district court erred in instructing the jury that
the officer, rather than the City, must have harbored retaliatory animus. However,
we concluded that error was harmless given that the jury had found the officer had
probable cause for the arrest. Id. The Supreme Court granted certiorari on the
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question of “whether the existence of probable cause defeats a First Amendment
claim for a retaliatory arrest.” Id. at __, 138 S. Ct. at 1950–51.
For purposes of its discussion, the Supreme Court assumed Lozman’s “arrest
was taken pursuant to an official city policy,” but added “whether there was such a
policy and what its content may have been are issues not decided here.” Id. at __,
138 S. Ct. at 1951. Even though there was probable cause for Lozman’s arrest, the
Court ultimately concluded that the “unique” facts of the case warranted allowing
Lozman to proceed on his claim that the City had engaged in an “official” policy of
retaliation against him based on his First Amendment activity. Id. at __, 138 S. Ct.
at 1954–55.
Explaining its reasoning, the Court identified five considerations that
justified allowing Lozman’s First Amendment retaliation claim to proceed even
though there was probable cause for his arrest. Id. at __, 138 S. Ct. at 1949, 1954–
55. Those five considerations were: (1) plaintiff Lozman had alleged “more
governmental action than simply an [officer’s] arrest” because he claimed that the
City “itself retaliated against him pursuant to an ‘official municipal policy’ of
intimidation”; (2) the plaintiff had alleged that the City’s retaliation plan was
“premeditated” and formed months earlier (before the arrest); (3) the plaintiff had
“objective evidence” of a policy motivated by retaliation, as he had a transcript of a
closed-door meeting where a Councilmember stated that the City should use its
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resources to “intimidate” Lozman and others who filed lawsuits against the City;
(4) there was less of a concern about the causation problem and opening the
floodgates of frivolous retaliation claims because the City’s official policy of
retaliation was formed months earlier, there was little relation between the
“protected speech that prompted the retaliatory policy and the criminal offense
(public disturbance) for which the arrest was made,” and “it was unlikely that the
connection between the alleged animus and injury will be weakened by an
official’s legitimate consideration of speech”; and (5) the plaintiff’s speech—the
right to petition—was “one of the most precious of the liberties safeguarded by the
Bill of Rights” and was “high in the hierarchy of First Amendment values.” Id.Although holding that plaintiff Lozman could sue for retaliatory arrest “[o]n
facts like these,” the Supreme Court emphasized that its holding was limited to the
alleged facts of Lozman’s case and cautioned that it was not deciding whether, as a
general matter, the causation standard in Mt. Healthy or the lack-of-probable-cause
element in Hartman applied to retaliatory arrest claims. Id. at __, 138 S. Ct. at1954–55. The Supreme Court also left it to this Court on remand to decide
whether Lozman “is ultimately entitled to relief or even a new trial.” Id. at __, 138
S. Ct. at 1955. Because the Supreme Court had only assumed that there was an
official retaliatory policy and that the arrest was taken pursuant to that official city
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policy, the Supreme Court stated that on remand, among other matters, this Court
may wish to consider:
(1) whether any reasonable juror could find that the City actually
formed a retaliatory policy to intimidate Lozman during its June 2006
closed-door session; (2) whether any reasonable juror could find that
the November 2006 arrest constituted an official act by the City; and
(3) whether, under Mt. Healthy, the City has proved that it would have
arrested Lozman regardless of any retaliatory animus—for example, if
Lozman’s conduct during prior city council meetings had also violated
valid rules as to proper subjects of discussion, thus explaining his arrest
here.
Id.F. 2019 Nieves: First Amendment Retaliatory Arrest Claims Generally
Require the Absence of Probable Cause
Shortly after Lozman, the Supreme Court had an opportunity to decide the
question that it had left open in that case: which standard, the Mt. Healthy standard
or the Hartman standard, should govern a § 1983 First Amendment retaliatory
arrest case. In this case, Nieves, the Court opted for the Hartman test: the presence
of probable cause will typically invalidate a First Amendment retaliatory arrest
claim. Nieves, 587 U.S. at __, __, 139 S. Ct. at 1723–24, 1726. The Court
explained that because, generally speaking, “retaliatory arrest claims involve [the
same] causal complexities akin to those” in Hartman, which concerned a First
Amendment claim based on a retaliatory criminal prosecution, likewise “[t]he
presence of probable cause should generally defeat a First Amendment retaliatory
arrest claim.” Id.33
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In Nieves, plaintiff Bartlett was arrested by two police officers, Luis Nieves
and Bryce Weight, for disorderly conduct and resisting arrest during a rowdy
winter sports festival held in Alaska. Id. at __, 139 S. Ct. at 1720–21. According
to Officer Nieves, he was speaking with a group of festival attendees when a
seemingly intoxicated Bartlett started shouting at the attendees not to talk to the
police. Id. at __, 139 S. Ct. at 1720. When Officer Nieves approached him,
Bartlett yelled at Officer Nieves to leave. Id. Rather than escalate the situation,
Officer Nieves left. Id. Bartlett disputed that account, claiming that he was not
drunk and did not yell at Officer Nieves. Id.Officer Weight stated that, several minutes later, Bartlett approached him in
an aggressive manner while Officer Weight was questioning a minor about
underaged drinking, stood between Officer Weight and the minor, and yelled with
slurred speech that Officer Weight should not speak with the minor. Id. When
Bartlett stepped toward him, Officer Weight pushed Bartlett back. Id. Officer
Nieves saw the confrontation and initiated Bartlett’s arrest. Id. at __, 139 S. Ct. at1720–21. When Bartlett was slow to comply, the officers forced him to the ground
and threatened to tase him. Id. at __, 139 S. Ct. at 1721. Bartlett denied being
aggressive and claimed that he stood close to Officer Weight in order to speak over
the music and was slow to comply because he did not want to aggravate a back
injury. Id. After being handcuffed, Bartlett claimed that Officer Nieves said: “Bet
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you wish you would have talked to me now.” Id. (alteration accepted). The
officers then took Bartlett to a holding tent and charged him with disorderly
conduct and resisting arrest. Id. After a few hours, Bartlett was released from
custody, and the state later dismissed the criminal charges against him. Id.Subsequently, in a § 1983 action, Plaintiff Bartlett sued the officers for
violation of his First Amendment rights by arresting him in retaliation for his
speech—his refusal to speak with Officer Nieves earlier in the evening and his
intervention in Officer Weight’s discussion with the minor. Id. The officers stated
that they arrested Bartlett because he interfered with an investigation and initiated
a physical confrontation with Officer Weight. Id. The district court granted
summary judgment to the officers because (1) “the officers had probable cause to
arrest Bartlett,” and (2) “the existence of probable cause precluded Bartlett’s First
Amendment retaliatory arrest claim.” Id. The Ninth Circuit disagreed, holding
that Bartlett had presented enough evidence that his speech was a “but-for cause”
of the arrest. Bartlett v. Nieves, 712 F. App’x 613, 616 (9th Cir. 2017)
(unpublished).
In Nieves, the Supreme Court reversed the Ninth Circuit and held “[b]ecause
there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a
matter of law.” Nieves, 587 U.S. at __, 139 S. Ct. at 1728. The Court
acknowledged that retaliatory arrests cases do not present a “presumption of
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prosecutorial regularity” or “multiple government actors,” which are factors that
are found in retaliatory prosecution cases and support a probable cause standard.
Id. at __, 139 S. Ct. at 1724. Nonetheless, the Court concluded that, like in
retaliatory prosecution cases, the causal inquiry in retaliatory arrests cases is
complex because “protected speech is often a ‘wholly legitimate consideration’ for
officers when deciding whether to make an arrest.” Id. at __, 193 S. Ct. at 1723–
24. Thus, the Court concluded that “[t]he plaintiff pressing a retaliatory arrest
claim must plead and prove the absence of probable cause for the arrest.” Id.
In addition, the Supreme Court in Nieves reasoned that, “‘[l]ike retaliatory
prosecution cases, evidence of the presence or absence of probable cause for the
arrest will be available in virtually every retaliatory arrest case.’” Id. at __, 139
S. Ct. at 1724 (quoting Reichle, 566 U.S. at 668, 132 S. Ct. at 2095). “And
because probable cause speaks to the objective reasonableness of an arrest, its
absence will—as in retaliatory prosecution cases—generally provide weighty
evidence that the officer’s animus caused the arrest, whereas the presence of
probable cause will suggest the opposite.” Id. (internal citation omitted).
The Supreme Court therefore concluded that “[t]he presence of probable
cause should generally defeat a First Amendment retaliatory arrest claim.” Id. at
__, 139 S. Ct. at 1726. On the other hand, the Supreme Court also instructed that if
the plaintiff demonstrates the absence of probable cause, “the Mt. Healthy test
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governs: The plaintiff must show that the retaliation was a substantial or
motivating factor behind the arrest, and, if that showing is made, the defendant can
prevail only by showing that the arrest would have been initiated without respect to
retaliation.” Id. at __, 139 S. Ct. at 1725 (internal citations, alterations, and
quotation marks omitted).
Examining specifically the arrest of the plaintiff Bartlett, the Supreme Court
in Nieves concluded that, “[b]ecause there was probable cause to arrest [plaintiff]
Bartlett, his retaliatory arrest claim fails as a matter of law.” Id. at __, 139 S. Ct. at
1728. In reaching this conclusion, the Supreme Court examined the two “common
law torts that provide the closest analogy to retaliatory arrest claims”: false
imprisonment and malicious prosecution. Id. at __, 139 S. Ct. at 1726 (internal
quotation marks omitted). Although the parties disputed which tort was the better
analog, the Supreme Court concluded that both common law torts suggested the
same result, which is that a plaintiff must show the absence of probable cause. Id.The Supreme Court explained that “[i]t has long been settled law that malicious
prosecution requires proving the want of probable cause.” Id. (internal quotation
marks omitted). And for a false imprisonment claim, “the presence of probable
cause was generally a complete defense for peace officers.” Id.13 Relying in part
13
“At common law, peace officers were privileged to make warrantless arrests based on
probable cause of the commission of a felony or certain misdemeanors.” Nieves, 587 U.S. at __,
139 S. Ct. at 1726. “Although the exact scope of the privilege varied somewhat depending on
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on these two common law analogs, the Supreme Court held the defendant officers
were entitled to summary judgment on plaintiff Bartlett’s § 1983 First Amendment
claims for retaliatory arrest because there was probable cause to arrest him. Id. at
__, 139 S. Ct. at 1726–28.
One final observation about Nieves. Although probable cause defeated
plaintiff Bartlett’s retaliatory arrest claim, the Supreme Court issued a caveat,
albeit in dicta, about that holding. The Supreme Court explained that, although
probable cause generally defeats a retaliatory arrest claim, “a narrow qualification
is warranted for circumstances where officers have probable cause to make arrests,
but typically exercise their discretion not to do so.” Id. at __, 139 S. Ct. at 1727. 14
In those types of cases, “an unyielding requirement to show the absence of
probable cause could pose a risk that some police officers may exploit the arrest
power as a means of suppressing speech.” Id. (internal quotation marks omitted).
Therefore, in Nieves the Supreme Court carved out a narrow exception to
the jurisdiction, the consistent rule was that officers were not liable for arrests they were
privileged to make based on probable cause.” Id. at __, 139 S. Ct. at 1727.
14
The Supreme Court noted that given the present power of police officers to make
warrantless arrests for misdemeanors for even very minor offenses, such as jaywalking, the
existence of probable cause for an arrest on such an offense would do little to disprove that a
retaliatory motive prompted the arrest for an arrestee who had, for example, vocally complained
about police conduct. Nieves, 587 U.S. at __, 139 S. Ct. at 1727. In such a circumstance, the
no-probable-cause pleading requirement would not apply to a plaintiff who showed that similarly
offending individuals who had not engaged in protected speech had not been arrested by that
officer for the same violative conduct. Id.38
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“the no-probable-cause requirement.” Id. The exception applies “when a plaintiff
presents objective evidence that he was arrested when otherwise similarly situated
individuals not engaged in the same sort of protected speech had not been.” Id.The Supreme Court stated that the plaintiff’s showing of such objective evidence
would address the causal concern that non-retaliatory reasons prompted the arrest
and avoid a subjective inquiry into the officer’s individual statements and
motivations. Id. If the plaintiff makes this requisite “objective evidence” showing
that others similarly situated were not arrested by the individual officer, the
plaintiff’s First Amendment retaliatory arrest claim may move forward “in the
same manner as claims where the plaintiff has met the threshold showing of the
absence of probable cause.” Id.15
15
Chief Justice Roberts wrote the opinion of the Nieves Court, joined in full by Justices
Breyer, Alito, Kagan, and Kavanaugh, and by Justice Thomas in all but the part regarding the
selective arrest exception. Justice Gorsuch concurred in part and dissented in part, concluding
that there is no basis in law to graft a no-probable-cause requirement onto a § 1983 First
Amendment retaliatory arrest claim. Nieves, 587 U.S. at __, 139 S. Ct. at 1730–31. In Justice
Gorsuch’s view, the absence of probable cause is not an absolute requirement for a First
Amendment retaliatory arrest claim and its presence is not an absolute defense. Id. at __, 139
S. Ct. at 1732.
Nevertheless, Justice Gorsuch suggested that probable cause could bear on a retaliatory
arrest claim in at least two ways: (1) to show causation; and (2) in light of separation of powers
and federalism concerns where state and federal executive officials, not judges, are vested with
the decision to bring criminal charges. Id. at __, 139 S. Ct. at 1732–34. As to causation, Justice
Gorsuch noted the opinion’s exception for evidence of selective arrests and also the open
question of whether direct evidence of discrimination, such as a prosecutor’s admission of
discriminatory purpose, might be enough to allow a retaliatory arrest claim to proceed in cases
where probable cause exists for the arrest. Id. at __, 139 S. Ct. at 1733.
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To recap, the presence of probable cause will (1) defeat a § 1983 First
Amendment retaliation claim for an underlying retaliatory criminal prosecution,
Hartman, and also (2) will generally defeat a § 1983 First Amendment retaliation
claim for an underlying retaliatory arrest, Nieves, except (a) when the “unique”
five factual circumstances in Lozman exist together, or (b) where the plaintiff
establishes retaliation animus and presents “objective evidence” that he was
arrested for certain conduct when otherwise similarly situated individuals
(committing the same conduct) had not engaged in the same sort of protected
speech and had not been arrested, Nieves. While these Supreme Court decisions
provide significant guidance, the Supreme Court has not addressed a § 1983 First
Amendment claim predicated on a retaliatory civil lawsuit. Although there is scant
circuit precedent, we discuss those few decisions because they demonstrate how
circuit courts have assessed what a plaintiff must prove to establish the required
causal connection in § 1983 First Amendment retaliation cases when predicated on
civil lawsuits.
G. Other Circuit Precedent
We have located only three circuit decisions involving § 1983 First
Amendment retaliation claims predicated on a retaliatory civil lawsuit or
counterclaim. See Greenwich Citizens Comm., Inc. v. Ctys. of Warren & Wash.
Indus. Dev. Agency, 77 F.3d 26 (2d Cir. 1996) (counterclaim); Harrison v.
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Springdale Water & Sewer Comm’n, 780 F.2d 1422 (8th Cir. 1986)
(counterclaim); Bell v. Sch. Bd. of Norfolk, 734 F.2d 155 (4th Cir. 1984) (civil
declaratory judgment action). Although Mt. Healthy was decided in 1977 well
before these decisions, two of them, Harrison and Bell, do not cite Mt. Healthy.
And, of course, all three cases were decided long before the probable cause
decisions in Hartman, Lozman, and Nieves. Nonetheless, each of the three circuits
gave some consideration to whether the underlying civil action was frivolous in
deciding whether the § 1983 plaintiff had shown the requisite causation between
the defendant’s retaliatory animus and the plaintiff’s injury.
For example, in Greenwich, the plaintiffs filed a state court lawsuit against a
county government and other defendants in an effort to stop a waste incinerator
project. Greenwich, 77 F.3d at 28. The plaintiffs’ lawsuit caused the market for
the municipal bonds (to fund the project) to deteriorate. Id. The defendants filed
various state tort counterclaims against the plaintiffs. Id. at 29. The Greenwich
plaintiffs then filed a separate § 1983 First Amendment retaliation claim, alleging
the defendants’ state court counterclaims were filed in retaliation to the plaintiffs’
exercise of their protected First Amendment rights. Id. The jury agreed, but the
Second Circuit remanded for a new trial.
As to causation, the Second Circuit concluded that the § 1983 plaintiffs had
shown that the defendants “would not have filed their state court counterclaims
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‘but for’ the Greenwich plaintiffs’ filing of their state court lawsuit.” Id. at 31
(applying the Mt. Healthy causation test). However, the Second Circuit held that
the § 1983 plaintiffs were also “required to persuade the jury that the [defendants’]
counterclaims were filed, not as a legitimate response to litigation, but as a form of
retaliation, with the purpose of deterring the [plaintiffs’] exercise of First
Amendment freedoms.” Id. (emphasis added). The Second Circuit posited that
one way the plaintiffs could prove that the defendants acted with a retaliatory
purpose was to show that the defendants’ state court counterclaims were
“frivolous.” Id. at 31 n.5. The Second Circuit determined that the district court
erred by omitting from the jury charge “the element of retaliatory intent in
describing what the Greenwich plaintiffs had to prove. Id. at 33 16; see also
Gorman-Bakos v. Cornell Coop Extension of Schenectady Cty., 252 F.3d 545, 556
(2d Cir. 2001).
Similarly, in evaluating the plaintiffs’ First Amendment retaliation claim in
Harrison, the Eighth Circuit considered whether the defendant’s counterclaim was
frivolous. Harrison, 780 F.2d at 1424. The plaintiffs had sued the defendant
Sewer Commission in state court for injunctive relief and damages from sewage
16
The Second Circuit noted that the defendants “do not advance, nor do we consider, the
argument that they may not be held liable for filing their counterclaims under the theory that
such liability would impair their own First Amendment rights to conduct legitimate litigation.”
Greenwich, 77 F.3d at 33 n.6.
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discharge in the creek near their blueberry farm. Id. The Commission filed a
counterclaim to condemn and take the plaintiffs’ property. Id. The plaintiffs then
filed a separate § 1983 action in federal court, contending that the Commission’s
condemnation counterclaim was filed in retaliation for the plaintiffs’ bringing their
state court lawsuit against the Commission. Id. at 1425, 1428. 17
Reversing the district court’s dismissal, the Eighth Circuit held that the
plaintiffs had stated a § 1983 cause of action for infringement of their First
Amendment “right of access to the courts.” Id. at 1426–28. Pivotal to the Eighth
Circuit’s ruling was the fact that, notwithstanding its filing of a state court
condemnation counterclaim to take plaintiffs’ property, the Commission in fact had
no plan to use the plaintiffs’ property, but instead the counterclaim “was filed as a
tactical move” to pressure the plaintiffs into settling their civil damages lawsuit
against the Commission. Id. at 1428. To the Eighth Circuit, these facts rendered
the Commission’s counterclaim “frivolous.” Id. at 1428.
In Bell, the Fourth Circuit similarly considered whether the defendant school
board’s prior civil action was a legitimate or “genuine” strategy in assessing a
plaintiff’s subsequent § 1983 First Amendment retaliation claim. Bell, 734 F.2d at
156, 157 n.6. In Bell, at a public meeting, the plaintiff opposed the school board’s
17
The Sewer Commission was a public agency created by the City of Springdale,
Arkansas. Harrison, 780 F.2d at 1424.
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new neighborhood plan. Id. The school board filed a declaratory judgment suit
naming the plaintiff as a representative of the class opposed to the new plan. Id.The plaintiff objected to being a class representative and requested dismissal. Id.The school board agreed to the dismissal. Id. at 156–57. The plaintiff then filed a
§ 1983 action alleging the school board’s suit was brought to deter her from
speaking out against the school plan. Id. at 157.
Affirming the district court’s dismissal of plaintiff’s § 1983 action, the
Fourth Circuit pointed out that (1) when the plaintiff advised she did not want to be
a class representative, the board dismissed her, and (2) the board’s declaratory
judgment lawsuit “appears to have been part of a genuine strategy aimed at
acquiring a court determination of the validity of the plan.” Id. at 157 & n.6.18
18
The Town also cites the Fifth Circuit’s decision in Johnson v. La. Dep’t of Agric., 18
F.3d 318, 309 (5th Cir. 1994), but the underlying prosecution in that First Amendment retaliation
case reads more like a criminal prosecution, than a civil action. In that case, the plaintiff Johnson
operated a crop-dusting business, and the Louisiana Department of Agriculture (“Department”)
charged the plaintiff with violations of pesticide laws, imposed penalties and revoked the
plaintiff’s license to apply pesticides. Id. at 319–20. The plaintiff appealed to a Louisiana state
court where the liability findings were generally affirmed although the sanctions were often
reduced. Id. at 320. Later, plaintiff Johnson filed a § 1983 First Amendment retaliation claim,
alleging the Department and others had prosecuted him in retaliation for his protected speech and
because he refused to make a large enough contribution to the Agriculture commissioner’s
reelection campaign.
On appeal, the Fifth Circuit analyzed plaintiff Johnson’s § 1983 First Amendment claim
predicated on retaliatory administrative proceedings as one for malicious prosecution in violation
of his First Amendment rights. Id. In affirming the dismissal of plaintiff’s § 1983 First
Amendment retaliation claim, the Fifth Circuit said that, “if the First Amendment protects
against malicious prosecution,” plaintiff Johnson “must not only allege a deprivation of a
constitutional right but must also establish all the elements of the common law tort action” of
malicious prosecution. Id. The Fifth Circuit affirmed because plaintiff Johnson had “failed to
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In sum, even before the probable cause decisions in Hartman and Nieves,
other circuits were considering whether the underlying civil lawsuit was frivolous
before allowing a plaintiff to move forward on a § 1983 First Amendment
retaliation claim predicated on that civil lawsuit. With this extensive background,
we return to this case.
III. ISSUES ON APPEAL
The parties primarily focus on two issues: (1) whether plaintiff DeMartini in
her § 1983 First Amendment retaliation claim predicated on an underlying civil
lawsuit is required to plead and prove the absence of probable cause for that civil
lawsuit; and (2) if so, whether the Town lacked probable cause to initiate its civil
RICO lawsuit against DeMartini.
DeMartini argues that her § 1983 First Amendment retaliation claim is
governed by Lozman, which held that plaintiff Lozman could bring a § 1983 First
Amendment retaliation claim for retaliatory arrest even though there was probable
cause for his arrest. DeMartini contends that the circumstances of her case are like
those in Lozman because the record amply demonstrates the Town adopted an
official municipal policy of retaliation against her. DeMartini argues Hartman’s
and Nieves’s probable cause requirement does not apply because the Town
satisfy the common law requirement that ‘the underlying criminal proceeding . . . terminate in
the plaintiff’s favor.’” Id. at 320–21.
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unanimously voted to bring its RICO civil action “for the sole purpose of stopping
the protected activity” of filing public records requests and lawsuits.
Alternatively, even if Hartman and Nieves’s probable cause requirement
applies, DeMartini argues that the Town lacked probable cause for its RICO
lawsuit. DeMartini contends that the Town’s RICO action was “baseless” and
frivolous given Eleventh Circuit precedent that a threat to file a civil lawsuit is not
a valid RICO predicate.
Not surprisingly, the Town responds that the “causation landscape” here is
more similar to that in Hartman because attorneys here functioned in the same role
as that of a prosecutor in Hartman. Just as the dual actors in Hartman, the
individuals filing the civil lawsuit (outside counsel) were not the same individuals
allegedly harboring the animus (the Town’s Commissioners). The Town also
stresses, however, that the Supreme Court limited Lozman to its unique factors,
several of which are missing here. And like the Supreme Court did in Nieves, this
Court should look to the closest common law analog to DeMartini’s First
Amendment retaliation claim based on a civil lawsuit, which is a claim for
“wrongful institution of legal process” and also requires proving the want of
probable cause.
If DeMartini is correct that the Town lacked probable cause to file its civil
RICO lawsuit, we would not have to address whether the presence of probable
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cause defeats DeMartini’s § 1983 First Amendment retaliation claim as a matter of
law. Thus, we first examine whether the Town had probable cause to file its civil
RICO lawsuit.
IV. TOWN’S PROBABLE CAUSE FOR ITS CIVIL LAWSUIT
“Probable cause to institute civil proceedings requires no more than a
‘reasonabl[e] belie[f] that there is a chance that [a] claim may be held valid upon
adjudication.’” Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49, 62–63, 113 S. Ct. 1920, 1929 (1993) (alternations in original)
(quoting Restatement (Second) of Torts § 675, cmt. E (Am. Law Inst. 1977)).
Therefore, “it is not necessary to show that the instigator of a lawsuit was certain
of the outcome of the proceeding, but rather that he had a reasonable belief, based
on the facts and circumstances known to him, in the validity of the claim.” Mee
Indus. v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 2010) (quotation marks
omitted). This standard, which requires less certainty than probable cause as
defined in the criminal context, is “not a high bar to meet.” Id. at 1218.
To establish a RICO violation under §§ 1962(c) and 1964(c), the Town had
to prove that DeMartini engaged in “an enterprise . . . through a pattern . . . of
racketeering activity that included at least two racketeering acts” that caused injury
to the Town’s “business or property.” See Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1348 (11th Cir. 2016) (quotations omitted). For RICO purposes, a
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“racketeering act” must constitute a violation of one of the laws described in 18
U.S.C. § 1961(1). Raney, 370 F.3d at 1087. Those laws include extortion, mail
fraud, and wire fraud, among other crimes. 18 U.S.C. § 1961(1). In support of its
RICO action, the Town alleged that the RICO co-conspirators had engaged in
(1) extortion as defined by the Hobbs Act, 18 U.S.C. § 1951, and (2) mail and wire
fraud in violation of 18 U.S.C. §§ 1341, 1343.
Importantly, prior to filing its RICO action, the Town obtained substantial
information that supported a reasonable belief that CAFI, O’Boyle, the O’Boyle
Law Firm, and other individuals—including DeMartini— had committed fraud
through their participation in an extortionate scheme involving fraudulent public
records requests, false settlement demands, and subsequent multiple lawsuits
designed to obtain attorney’s fees as opposed to the requested records. See Mee,
608 F.3d at 1211. Specifically, upon resigning as Executive Director of CAFI,
Chandler provided sworn testimony to Sweetapple, the Town’s special counsel,
indicating that CAFI, O’Boyle, the O’Boyle Law Firm, and DeMartini were
engaged in a fraudulent and unlawful effort to extort money from the Town via a
public records litigation “windfall scheme.” As described by Chandler, the scheme
involved two steps: (1) pummeling the Town with voluminous and intentionally
vague public records requests that were designed to elicit either no response, an
incomplete response, or an untimely response, and then (2) demanding that the
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Town pay an excessive settlement to avoid litigation under Florida’s public records
law, including demanding attorney’s fees in excess of the fees and costs the
O’Boyle Law Firm actually incurred to settle the case.
Furthermore, Chandler specifically implicated DeMartini in the scheme,
describing to special counsel Sweetapple her key role within CAFI and the
O’Boyle Law Firm, her importance to O’Boyle’s operations, and her direct
participation in the extortionate activities.
DeMartini does not dispute that employees of CAFI and the O’Boyle Law
Firm dumped thousands of public records requests on the Town—costing the
Town $370,000 in attorney’s fees. For a Town of about 1,000 people, those
attorney’s fees equaled about $370 per resident. Nor does DeMartini contest that
the Town had hired an attorney—Gerald Richman—who investigated the O’Boyle-
led scheme for over a year. Nor does DeMartini contest that the Town’s
investigation kicked into high gear when Chandler left his post as CAFI’s
Executive Director and reported his concerns about CAFI’s fraudulent scheme to
Town officials in extensive written and videotaped statements. And DeMartini
does not dispute that Chandler gave detailed insight into the scheme, including that
CAFI was deliberately making vague public records requests so that the O’Boyle
Law Firm could garner thousands of dollars in attorney’s fees.
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Likewise, DeMartini fails to contest certain details concerning what the
Town knew about her personal involvement in CAFI’s scheme. For example,
DeMartini does not contest that she participated in the O’Boyle-led scheme, with
O’Boyle describing her as his “left hand.” Indeed, Chandler provided the Town
with emails showing DeMartini’s alleged role at CAFI and the O’Boyle Law Firm.
Nor does DeMartini deny that Chandler informed the Town’s officials that
DeMartini was pressuring him to come up with 25 lawsuits per week and chastised
him for his proposal to refer CAFI’s work to other law firms besides the O’Boyle
Law Firm. Nor does DeMartini deny that Chandler told the Town that he was
troubled by CAFI’s policy that permitted DeMartini—a non-lawyer—to authorize
public record requests and litigation.
Instead, DeMartini makes two primary objections to the district court’s
finding that the Town had probable cause to file its civil RICO lawsuit: (1) the
Town should not have relied on Chandler’s sworn testimony because he might not
be viewed as a credible witness in the case; and (2) settled precedent in the
Eleventh Circuit clearly established that frivolous litigation can never serve as a
Hobbs Act violation, even if the plaintiff was using the litigation for extortionate
purposes. Neither contention has merit.
As to the first objection, while it is true that the Town might rightly have
considered how a jury might view Chandler’s testimony in a RICO lawsuit—given
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that he was previously a vocal supporter of public records requests and had sued
municipalities for public records requests in his past role as a director at CAFI—
the Town and its outside counsel never questioned Chandler’s veracity or
reliability about the inner workings of CAFI. And it was this inside-knowledge
that gave great heft to the Town’s allegations in its RICO complaint. Indeed, given
that Chandler had worked as CAFI’s Executive Director, he had first-hand
knowledge of O’Boyle and DeMartini’s scheme, and his affidavits corroborated
much of what the Town had already suspected after being the target of over a
thousand public records requests from CAFI. Accordingly, because Chandler had
a strong basis for his personal knowledge, the Town reasonably relied on his sworn
statements to form their reasonable belief that the whole scheme was designed
solely to extort monies from the public coffers.
As to DeMartini’s second objection, she argues that this Court’s precedent in
Pendergraft and Raney precluded the Town’s theory that a RICO action could be
based on DeMartini’s litigation activity, and thus eliminated any probable cause it
may have had for asserting a RICO claim. We reject DeMartini’s argument.
Pendergraft and Raney made it unlikely, but not impossible, for the Town to
succeed. The Town had a reasonable belief that there was a legitimate and
material distinction between their RICO claim and the ones that came before it in
that O’Boyle, DeMartini, and others had abused their statutory right to request
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public documents from the government “on a grand scale.” Gulf Stream, 654 F.
App’x at 444. Given the huge number of requests and the obvious pattern that they
were being filed to strip the Town of money while allowing the O’Boyle Law Firm
to profit handsomely, it was not unreasonable for the Town to believe in good faith
that this Court might carve out an exception to the general rule. See Prof’l Real
Estate Inv’rs., 508 U.S. at 65, 113 S. Ct. at 1930–31 (“Even though it did not
survive PRE’s motion for summary judgment, Columbia’s copyright action was
arguably ‘warranted by existing law’ or at the very least was based on an
objectively ‘good faith argument for the extension, modification, or reversal of
existing law.’” (quoting Federal Rule of Civil Procedure 11)). In fact, the Town
cited to out-of-circuit caselaw in which actual or threatened litigation was
acknowledged to be a component of the activities giving rise to a RICO claim.
Moreover, distinguishing existing precedent is the essence of good lawyering. See
Armco, Inc. v. S. Rock, Inc., 778 F.2d 1134, 1138 (5th Cir. 1985) (finding that the
defendant had probable cause to file a civil lawsuit because, even though it
suspected “it would eventually lose,” the defendant plausibly distinguished
existing case law). The Town had a mountain of fraudulent and extortionate
conduct to present in the hopes of creating an exception to the general rule in
Pendergraft and Raney. Consequently, there is no merit to DeMartini’s contention
that the Town lacked a reasonable belief that it might prevail in the RICO lawsuit.
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Simply put, the Town did not need to be certain of success on its civil RICO
claim in order to have probable cause to assert it. See Mee, 608 F.3d at 1211. Our
inquiry is whether all of the facts and circumstances available to the Town—
including Chandler’s extensive sworn testimony—gave the Town a reasonable
belief that it had a tenable RICO claim against DeMartini. Id. We conclude the
Town had such a reasonable belief.
Although the district court and this Court ultimately rejected the Town’s
proffered distinction, its argument was not unreasonable, as probable cause may be
based on “an objectively ‘good faith argument for the extension, modification, or
reversal of existing law.’” See Prof’l Real Estate Inv’rs, 508 U.S. at 65, 113 S. Ct.
at 1930–31. Consequently, the Town had a reasonable basis to believe its claim
was valid.19
Indeed, while this Court affirmed on appeal the district court’s dismissal of
the Town and Wantman’s civil RICO complaint, we denied the defendants’ motion
for sanctions under Federal Rule of Appellate Procedure 38. Gulf Stream, 654 F.
App’x at 445 n.7. Rule 38 provides that “[i]f a court of appeals determines that an
appeal is frivolous, it may . . . award just damages and single or double costs to the
19
We note that our prior panel decision now having decided that a civil RICO claim does
not lie here based on the facts of this case, the Town would presumably lack probable cause
should it seek again to file another civil RICO lawsuit against persons filing public records
requests and related lawsuits, even if the requests were filed in bad faith with the motivation
behind the claims being to extort money.
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appellee.” Fed. R. App. P. 38. In so ruling, we rejected defendants’ argument that
the appeal was frivolous in light of Pendergraft and Raney. Gulf Stream, 654 F.
App’x at 445 n.7. For all of these reasons, we conclude that the Town had
probable cause to file the civil RICO lawsuit.
V. WHETHER PROBABLE CAUSE DEFEATS DEMARTINI’S
RETALIATION CLAIM
Because the Town had probable cause to file its civil RICO lawsuit, we must
answer the final question: whether the existence of probable cause for a civil
lawsuit defeats a § 1983 First Amendment retaliation claim predicated on that
underlying civil lawsuit.
Based on the factors discussed in the Supreme Court’s Hartman and Nieves
decisions, we conclude that, as with § 1983 First Amendment retaliation claims
arising in the criminal prosecution and arrest context, the presence of probable
cause will generally defeat a § 1983 First Amendment retaliation claim based on a
civil lawsuit as a matter of law. See Hartman, 547 U.S. at 260–61, 265–66, 126 S.
Ct. at 1704, 1706–07; Nieves, 587 U.S. at __, 139 S. Ct. at 1726. This principle
will particularly be apt when the alleged retaliatory civil ligation by the
government is itself taken as a reasonable response to the plaintiff’s own litigation,
or threat of litigation, against the government. Just as a citizen may have the right
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to sue the government, the government likewise has the right, and duty, to engage
in legitimate responsive litigation to defend itself against such challenges.
In a First Amendment claim predicated on a retaliatory civil lawsuit by the
government, the causation landscape is akin to that in Hartman because an attorney
(whether in-house or outside counsel) has filed the underlying civil lawsuit.
Notably, before taking action here, the Town engaged attorneys to investigate
CAFI, O’Boyle, and DeMartini’s public records scheme. The involvement of
counsel widens the causation gap between any alleged retaliatory animus by the
Town and DeMartini’s injury. Counsel’s pivotal role in advising the Town that it
had a good faith basis to sue supports a requirement that DeMartini show the
absence of probable cause for the Town’s underlying lawsuit in order to establish
that the Town’s alleged animus caused DeMartini’s injury. Like the prosecutor in
Hartman who filed the criminal action, the individuals recommending and filing
the civil lawsuit here (counsel) were not the same individuals who allegedly
harbored the retaliatory animus (the Town’s Commissioners).
In fact, two separate outside attorneys, Robert Sweetapple and Gerald
Richman, conducted investigations, evaluated the facts, and only then
independently recommended the filing of the civil RICO lawsuit. Like the
prosecutor in Hartman, Sweetapple and Richman were obligated to exercise their
own individual judgment and were bound by the Florida Rules of Professional
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Conduct. Specifically, they were each (1) required to “exercise independent
professional judgment and render candid advice” to the Town, (2) limited to the
filing of a claim having “a basis in law and fact . . . that is not frivolous,” and
(3) prohibited from “us[ing] the law’s procedures . . . to harass and intimidate
others.” See R. Reg. Fla. Bar, 4-2.1, 4-3.1, Preamble.
Counsel’s investigation, legal recommendation, and filing of the RICO
lawsuit widen the causal gap between the Town’s alleged animus and DeMartini’s
injury. At bottom, as in Hartman, difficulty in proving the more complex chain of
causation here supports a conclusion that a lack of probable cause is a necessary
element in DeMartini’s § 1983 First Amendment retaliation claim. As in
retaliatory criminal prosecution cases, the absence of probable cause is necessary
to bridge the gap between the defendant’s alleged animus and plaintiff’s injury.
See Hartman, 547 U.S. at 259, 126 S. Ct. at 1703 (“[T]he need to prove a chain of
causation from animus to injury, with details specific to retaliatory-prosecutions
cases, . . . provides the strongest justification for the no-probable-cause
requirement.”). And as in Hartman, the absence of probable cause will have high
probative force and adds little to no cost, as the facts surrounding the Town’s prior
civil RICO lawsuit are already known by DeMartini.
In addition, in § 1983 First Amendment cases predicated on a retaliatory
civil lawsuit, the fact that probable cause existed to bring the underlying civil
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lawsuit shows that the defendant had a legitimate interest in considering the
plaintiff’s speech in the first place. For example, here, the protected speech that
the Town allegedly retaliated against here—the nearly 2,000 abusive public
records requests and 36 lawsuits—was the same conduct (or protected speech) for
which the Town had its own legitimate, objective reasons and motivation for
challenging by filing its civil RICO lawsuit. Unlike in other retaliation cases, in
addition to having legal probable cause for its civil RICO lawsuit, the Town had a
legitimate, objective factual reason and motivation for considering CAFI and
DeMartini’s public records requests and lawsuits in deciding to file the civil RICO
lawsuit. The Town’s action was made in response to what it reasonably believed
were the abusive intent and practices underlying CAFI and DeMartini’s harassing
public records requests and related lawsuits. While public records requests and
lawsuits typically constitute protected speech under the First Amendment, here the
Town had a legitimate interest and motivation in protecting itself, its coffers, and
its taxpaying citizens—independent of any motivation to retaliate—by litigation
against CAFI and DeMartini.
To that end, it is clear that: (1) CAFI had filed nearly 2,000 public records
requests and 36 lawsuits; (2) its requests were not designed to actually obtain the
records but to enable CAFI to obtain money through settlements and excessive
attorney’s fees; and (3) the Town had spent $370,000 in attorney’s fees in
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responding to CAFI’s requests and lawsuits, which were bleeding the Town’s
coffers dry, one abusive lawsuit at a time. Nor is this a case where the government
was attempting to thwart a citizen from using public records laws to prevent the
citizen from validly obtaining public information. Neither CAFI nor DeMartini
have pointed to any public information that the Town ever withheld or that they
were unable to obtain. Rather, given CAFI and DeMartini’s sustained pattern of
abusive requests and lawsuits, the Town’s elected officials had a legitimate,
objective reason to take legal action in response to CAFI’s conduct—conduct that
it reasonably believed was part of an illegal and fraudulent scheme to improperly
extort settlement money and attorney’s fees.
Further, that DeMartini’s protected speech was a “wholly legitimate
consideration” for the Town when deciding to file the civil RICO lawsuit also
renders the causation landscape more complex, just like it did in Nieves. Indeed,
as the Supreme Court recognized in Nieves, where protected speech is a “wholly
legitimate consideration” for the government when deciding to act, as when a
subject’s speech is itself a proper basis for the arrest, “the causal inquiry is
complex,” such that, generally speaking, probable cause is a necessary element of a
retaliatory arrest claim. See Nieves, __ U.S. at __, 139 S. Ct. at 1723–24 (internal
quotation marks omitted). Here, in considering its available litigation responses to
DeMartini, the Town necessarily had to consider her record requests and
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lawsuits—protected speech though it may be—and the surrounding circumstances.
Therefore, like in Nieves, the causal complexity warrants that a plaintiff, like
DeMartini, must plead and prove the absence of probable cause for her First
Amendment retaliation claim to move forward. Otherwise, it would be extremely
difficult, if not impossible, to determine whether the filing of the RICO lawsuit
was caused by the Town’s legitimate consideration of the protected speech, its
alleged retaliatory animus, or both.
This type of First Amendment retaliation case—one predicated on an
underlying civil lawsuit that the government had probable cause to bring—requires
our Court to address the intersection of (1) the fundamental principles that prohibit
the government from retaliating against a citizen for exercising her First
Amendment rights to free speech and to petition the government for redress; and
(2) other principles that define a government’s access to the court to file lawsuits to
remedy wrongs on behalf of its citizens. That CAFI’s fraudulent scheme involved
conduct protected by the First Amendment does not, in and of itself, mean that
§ 1983 automatically exposed the Town to strict liability civil damages because it
took action to protect itself from that fraud. The imposition of strict liability on the
government when the government has legitimate and objective reasons, based on
probable cause, to initiate the underlying lawsuit is not warranted, as outlined
above.
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For all of these reasons, we conclude that applying the objective, lack-of-
probable-cause requirement to a § 1983 First Amendment retaliation case
predicated on the filing of a civil lawsuit is appropriate because it strikes the proper
balance between protecting a plaintiff’s important First Amendment rights while,
at the same time, ensuring that the Town has a similar ability to access the courts to
protect itself and its citizens from non-meritorious litigation. Therefore, the
presence of probable cause will generally defeat a plaintiff’s § 1983 First
Amendment retaliation claim predicated on an underlying civil lawsuit, or
counterclaim for that matter.
Lastly, we must discuss whether there are possible exceptions to this general
rule. To date, the Supreme Court has not identified any exceptions to the no-
probable-cause requirement in § 1983 First Amendment retaliation claims
predicated on criminal prosecutions. Arguably, retaliation claims predicated on
prior civil lawsuits would not be subject to exceptions either.
We recognize, however, that the Supreme Court has, in two cases, identified
potential exceptions to the no-probable-cause requirement in § 1983 First
Amendment retaliation claims predicated on a criminal arrest. First, in Nieves, the
Supreme Court acknowledged a potential exception when a retaliatory-arrest
plaintiff not only establishes the arresting officer’s retaliatory animus but also
presents objective evidence that the plaintiff was arrested when people who had
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committed the same conduct, but who had not engaged in the same sort of
protected speech, had not been arrested by that officer. Nieves, 587 U.S. at __, 139
S. Ct. at 1727. Second, in Lozman, the Supreme Court delineated five “unique”
factual circumstances, which, if proven, would combine together to create an
exception to the general no-probable-cause requirement for a plaintiff bringing a
First Amendment retaliation claim predicated on retaliatory arrest. Lozman, 585
U.S. at __, __, 138 S. Ct. at 1949, 1954–55.
Whatever role these exceptions, articulated in a retaliatory arrest context,
might play in a case in which the plaintiff is alleging that a retaliatory civil lawsuit
has been filed against her, it is clear they play no role here. As to any Nieves
exception, there is no claim or evidence that other individuals engaged in similar
conduct, without ramifications, as did DeMartini and CAFI when they carried out
the fraudulent public records request scheme.
And, in any event, Lozman is so materially different from this case that its
five-pronged exception would not apply either. Pivotal factual ingredients to
Lozman’s holding are missing here. In Lozman, the speech allegedly retaliated
against—the prior open meeting lawsuit and criticisms of city officials—occurred
five months earlier and was not the same conduct that, the defendant City claimed,
gave rise to Lozman’s arrest. See id. at __, __, 138 S. Ct. at 1949, 1954–55. The
Lozman Court found this fact persuasive because it circumvented the difficulties in
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the type of retaliation claims the Supreme Court had been concerned about, that is,
arrests very close in time to the protected speech, where it would be difficult, if not
impossible, to tell whether the arrest “was caused by the officer’s legitimate or
illegitimate consideration of speech.” 20 Id. at __, 138 S. Ct. at 1953.
Because the speech the Town allegedly retaliated against here—the public
records requests and subsequent lawsuits—was the same protected speech for
which the Town filed a civil lawsuit supported by probable cause, DeMartini’s
retaliation claim is precisely the type of claim that the Supreme Court in Lozman
was concerned would prove indecipherable for purposes of proving causation and
therefore would create a serious risk of “dubious” First Amendment retaliatory
claims. See id.In addition, the Supreme Court assumed for purposes of its decision that the
City’s ordering of Lozman’s arrest was not a legitimate response to Lozman’s five-
months-earlier open meetings lawsuit and criticisms. As the Supreme Court
explained, “it is difficult to see why a city official could have legitimately
considered [at the time of arrest] that Lozman had, months earlier, criticized city
officials or filed a lawsuit against the City.” Id. at __, 138 S. Ct. at 1954. In
contrast, the Town here had a legitimate, non-retaliatory litigation purpose in
20
The separation in time and type of conduct would purportedly allow the jury to readily
decide if plaintiff Lozman’s arrest was due to Lozman’s conduct at the meeting or due to
Lozman’s prior lawsuit and criticisms five months earlier.
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considering CAFI and DeMartini’s public records requests and lawsuits at the time
it filed its civil RICO lawsuit. Namely, to stem the hemorrhaging of public
resources that DeMartini’s bad faith requests had caused. Further, the Town
engaged attorneys who investigated, recommended, and filed the Town’s RICO
lawsuit. There was no similar counsel in Lozman to complicate the causation
chain.
Accordingly, because the factual circumstances in Lozman are so materially
distinguishable from this case and because the Supreme Court carefully limited its
Lozman decision to its “unique facts,” we conclude that Lozman’s exception to the
no-probable cause requirement does not help DeMartini’s First Amendment
retaliation claim, even if it were potentially applicable.
For all of these reasons and under the totality of the circumstances, we
conclude that DeMartini has not shown that the district court erred in granting
summary judgment to the Town on her § 1983 First Amendment retaliation claim
predicated on the Town’s civil RICO lawsuit. 21
Separate from the elements of a First Amendment retaliation claim, all plaintiffs who
21
sue a municipality under § 1983 must show that execution of the municipality’s policy or custom
caused the alleged injury. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694–95,
98 S. Ct. 2018, 2037-38 (1978); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106
S. Ct. 1292, 1298 (1986) (explaining that, in order to recover under § 1983, the plaintiff suing the
municipality must show that the “municipality has officially sanctioned or ordered” the action
causing the alleged injury). A plaintiff may show a municipality’s policy or custom in several
ways, including (1) showing the municipality’s action was “an official policy enacted by [the
municipality’s] legislative body”; (2) demonstrating that a “final policymaker[] . . . acquiesced in
a longstanding practice that constitutes the entity’s standard operating procedure; or (3) proving
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Our conclusion—that probable cause generally defeats a First Amendment
retaliation claim predicated on an underlying civil lawsuit—is also confirmed by
common-law doctrine. The Supreme Court has instructed that, “[w]hen defining
the contours of a claim under § 1983, we look to common-law principles that were
well settled at the time of its enactment.” Nieves, 587 U.S. at __, 139 S. Ct. at
1726 (quotation marks omitted); Manuel v. City of Joliet, Ill., 580 U.S. at __, 137
S. Ct. 911, 921 (2017) (stating that common-law principles guide the definition of
§ 1983 claims); Kalina v. Fletcher, 522 U.S. 118, 123, 118 S. Ct. 502, 506 (1997)
(examining common-law doctrine when identifying the elements of the § 1983
cause of action and defenses available to state actors).
The Supreme Court has told us that when § 1983 was enacted in 1871, there
was no common-law tort for retaliatory arrest based on First Amendment protected
speech, and thus we should look to the common-law torts that provide the “closest
analogy” to such retaliatory arrest claims. See Nieves, 587 U.S. at __, 139 S. Ct. at
1726 (internal quotation marks omitted). In Nieves, rather than deciding whether a
common-law malicious prosecution claim or a false imprisonment claim was the
“a subordinate public official [made] an unconstitutional decision” that was “then adopted by
someone who does have final policymaking authority.” Hoefling v. City of Miami, 811 F.3d
1271, 1279 (11th Cir. 2016) (quotation marks omitted).
In this case, DeMartini relies on the first method to proceed against the Town under
Monell. Because our probable cause holding decides this case, we need not, and do not, address
whether the Town’s vote did or did not satisfy the threshold Monell showing of an existence of
an official policy.
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better analog to a retaliatory arrest claim, the Supreme Court concluded that the
presence of probable cause defeated both types of claims at common law and
would generally defeat a First Amendment retaliatory arrest claim. Id. at __, 139
S. Ct. at 1726–27.
Similarly, in DeMartini’s case, there was no common-law tort for a First
Amendment retaliatory civil lawsuit claim when § 1983 was enacted. Yet Nieves’s
guidance leads us to ask what “common law tort[] . . . provide[s] the ‘closest
analogy’” to a § 1983 First Amendment retaliation claim predicated on an
underlying retaliatory civil lawsuit? See Nieves, 587 U.S. __, 139 S. Ct. at 1726(quoting Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct. 2364, 2371 (1994)).
The closest analogy to DeMartini’s § 1983 First Amendment retaliation
claim is a “wrongful civil proceedings” claim. See Prof’l Real Estate Inv’rs, 508
U.S. at 62, 113 S. Ct. at 1929. As the Supreme Court has explained, “[t]he notion
of probable cause, as understood and applied in the commonlaw tort of wrongful
civil proceedings, requires the plaintiff to prove that the defendant lacked probable
cause to institute an unsuccessful civil lawsuit and that the defendant pressed the
action for an improper, malicious purpose.” Id. Likewise, the Restatement
(Second) of Torts defines the tort of wrongful civil proceedings as:
One who takes an active part in the initiation, continuation or
procurement of civil proceedings against another is subject to liability
to the other for wrongful civil proceedings if (a) he acts without
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probable cause, and primarily for a purpose other than that of securing
the proper adjudication of the claim in which the proceedings are based,
and (b) except when they are ex parte, the proceedings have terminated
in favor of the person against whom they are brought.
§ 674 (Am. Law. Inst. 1977) (emphasis added).
It has long been settled law, and DeMartini does not dispute, that wrongful
civil proceedings claims require proving the absence of probable cause. See T.
Cooley, Law of Torts 187-89 (1879); Prof’l Real Estate Inv’rs, 508 U.S. at 63, 113
S. Ct. at 1929 (“Because the absence of probable cause is an essential element of
the tort, the existence of probable cause is an absolute defense.” (citing Crescent
City Live Stock Co. v. Butchers’ Union Slaughter–House Co., 120 U.S. 141, 149,
7 S. Ct. 472, 476 (1887)). Our holding here—that probable cause defeats
DeMartini’s § 1983 First Amendment retaliation claim—is also consistent with,
and supported by, this common law.
VI. FLORIDA MALICIOUS PROSECUTION
On appeal, DeMartini also argues that the district court erred in granting
summary judgment to Wantman on her malicious prosecution claim under Florida
law. Although DeMartini agrees that the “lack of probable cause” is a necessary
element of a Florida malicious prosecution claim, she nevertheless argues that
Wantman lacked such probable cause to file the civil RICO lawsuit against her.
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To prevail on a common-law tort of malicious prosecution under Florida
law, a plaintiff must establish the following elements:
(1) an original criminal or civil judicial proceeding against the present
plaintiff was commenced or continued; (2) the present defendant was
the legal cause of the original proceeding against the present plaintiff
as the defendant in the original proceeding; (3) the termination of the
original proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff; (4) there was an absence of
probable cause for the original proceeding; (5) there was malice on the
part of the present defendant; and (6) the plaintiff suffered damage as a
result of the original proceeding.
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (emphasis
added); Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. Dist. Ct. App. 2002); see
Paez, 915 F.3d at 1291–92 (discussing these same elements of the common-law
tort of malicious prosecution available under Florida law). The failure of a
plaintiff to establish any one of these six elements is fatal to a claim of malicious
prosecution. Mancusi, 632 So. 2d at 1355. Thus, as a necessary element, the
existence of probable cause will defeat a claim for malicious prosecution. Id.Under Florida law, to show probable cause to initiate a civil proceeding, “it
is not necessary to show that the instigator of a lawsuit was certain of the outcome
of the proceeding, but rather that he had a reasonable belief, based on facts and
circumstances known to him, in the validity of the claim.” Wright v. Yurko, 446
So. 2d 1162, 1166 (Fla. Dist. Ct. App. 1984). Stated another way, “the instigator
must have had ‘[a] reasonable ground of suspicion, supported by circumstances
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sufficiently strong in themselves to warrant a cautious man in the belief that the
person accused is guilty of the offense with which he is charged.’” Mee, 608 F.3d
at 1211 (alteration in original) (quoting Goldstein v. Sabella, 88 So. 2d 910, 911
(Fla. 1956)). A lack of probable cause can be shown “[w]here it would appear to a
‘cautious man’ that further investigation is justified before instituting a
proceeding,” and such investigation is not undertaken. Harris v. Lewis State Bank,
482 So. 2d 1378, 1382 (Fla. Dist. Ct. App. 1986).
In the context of a civil suit, probable cause is “measured by a lesser
standard than in a criminal suit.” Wright, 446 So. 2d at 1166. And the Florida
Supreme Court has explained that “[w]hat facts and circumstances amount to
probable cause is a pure question of law,” while the existence of those facts or
circumstances “in any particular case is a pure question of fact.” City of Pensacola
v. Owens, 369 So.2d 328, 330 (Fla. 1979) (internal quotation marks omitted).
Here, the district court properly granted summary judgment to Wantman on
DeMartini’s malicious prosecution claim because Wantman, like the Town, had
probable cause to file the RICO suit against her. It is undisputed that: (1) Gerald
Richman represented the Town and Wantman in the lawsuit; (2) Richman
investigated CAFI’s fraudulent scheme at length; (3) Richman called Wantman
about the lawsuit; and (4) Wantman agreed to join the Town in filing the lawsuit
based on discussions with Richman. Indeed, based on a year-long investigation,
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including reviewing Chandler’s statements, Richman had obtained substantial
information that supported a reasonable belief that CAFI, O’Boyle, the O’Boyle
Law Firm, and other individuals—including DeMartini—had committed fraud
through their participation in an extortionate scheme involving fraudulent public
records requests, false settlement demands, and subsequent multiple lawsuits
designed to obtain attorney’s fees as opposed to the requested records.22
We recognize that DeMartini stresses that Wantman’s President and Federal
Rule of Civil Procedure 30(b)(6) representative, David Wantman, testified at his
deposition that (1) he had “no idea” who DeMartini was, and (2) aside
from discussing the matter with attorney Richman, Wantman did not independently
investigate DeMartini’s role in CAFI’s fraudulent scheme. But the fact remains
that DeMartini does not dispute that Richman investigated CAFI’s scheme, advised
the Town and later Wantman about that scheme, and Wantman only agreed to join
the lawsuit after discussions with Richman.
Arising from their attorney–client relationship, Wantman and Richman had a
principal and agent relationship. See Durrett v. Jenkins Brickyard, Inc., 678 F.2d
911, 916 (11th Cir. 1982) (explaining that an attorney is his client’s agent and
22
As noted earlier, DeMartini also brought a claim for malicious prosecution against
Gerald Richman. The district court granted summary judgment to Richman on that claim
because DeMartini failed to cite evidence from which a reasonable jury could infer that Richman
lacked probable cause for filing the RICO civil lawsuit. On appeal, DeMartini does not
challenge that ruling.
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representative). Information obtained by an agent is imputed to the agent’s
principal. See First Ala. Bank of Montgomery, N.A., First State Ins. Co., 899 F.2d
1045, 1074, 1079 (11th Cir. 1990) (stating that generally the agent’s knowledge is
imputed to the principal and is treated as the principal’s knowledge). Everything
that Richman knew about DeMartini’s role in the scheme was imputed to
Wantman. Accordingly, Wantman had probable cause to file the RICO suit
against DeMartini.23
VII. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to the Town on DeMartini’s § 1983 First Amendment retaliation claim
and to Wantman on her Florida malicious prosecution claim.
AFFIRMED.
23
The district court properly denied DeMartini’s cross-motion for summary judgment
against Wantman. As described above, there is no genuine issue of material fact that Wantman
had probable cause to file the RICO action.
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ROSENBAUM, Circuit Judge, concurring:
I concur in much of the panel’s well-reasoned opinion. I write separately to
address the Majority Opinion only to the extent that it might be understood to suggest
that probable cause supporting the filing of a civil lawsuit predicated on prior civil
litigation may be all that is ever required to defeat a § 1983 First Amendment
retaliation claim. See Maj. Op. at 60 (“To date, the Supreme Court has not identified
any exceptions to the no-probable-cause requirement in § 1983 First Amendment
retaliation claims predicated on criminal prosecutions. Arguably, retaliation claims
predicated on prior civil lawsuits would not be subject to exceptions either.”). With
any such suggestion, I firmly disagree.
Presumably, the Majority Opinion bases any suggestion that a finding of
probable cause may be all that is ever required in a case such as this one on Hartman
v. Moore, 547 U.S. 250 (2006), since that is the sole alleged retaliatory criminal-
prosecution case it discusses. But Hartman does not stand for the proposition that a
showing of probable cause justifying a criminal prosecution necessarily forecloses a
First Amendment retaliation claim in all cases. To the contrary, Hartman expressly
explains that the showing of probable cause supporting a criminal prosecution “is
not necessarily dispositive.” Id. at 265. That is so because “showing . . . [the]
presence [of probable cause] does not guarantee that [retaliation] was not the but-for
fact in a prosecutor’s decision.” Id. Indeed, Hartman notes that “[a] prosecutor’s
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disclosure of retaliatory thinking on his part . . . would be of great significance . . . .
So would evidence that a prosecutor was nothing but a rubber stamp for his
investigative staff or the police.” Id. at 264. Nevertheless, Hartman reasons,
because such incidents “are likely to be rare,” it makes sense for the rule to provide
that probable cause supporting a criminal prosecution generally forecloses the
viability of a First Amendment retaliation suit. See id.But criminal prosecutions can result in the loss of liberty, can affect
reputation, and can be costly to the person prosecuted. As a result, they can be an
effective way to punish a speaker with whom the government disagrees and to chill
and slow down others who would consider voicing their discontent with the
government. So Hartman explicitly leaves the door open for First Amendment
retaliation claims based on probable-cause supported criminal actions that would not
have been brought but for an intent on the part of the government to retaliate against
the defendant for engaging in protected First Amendment activity.
The same is true of civil lawsuits. Probable cause supporting the filing of a
civil lawsuit predicated on prior civil litigation may, as a general rule, be all that is
required to defeat a § 1983 First Amendment retaliation claim. But civil litigation
is costly and stressful. It can also result in delays to the matters being litigated. So
like a criminal prosecution, litigation can also be a highly effective way to punish
and chill protected First Amendment activity.
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To ensure that the government is never permitted to weaponize litigation to
punish and chill protected speech, in every § 1983 First Amendment retaliation case
involving the filing of a lawsuit in response to prior civil litigation, even though
supported by probable cause, we must always at least evaluate the surrounding
circumstances, keeping in mind the considerations the Supreme Court has identified
in Hartman and in retaliatory-arrest cases such as Lozman v. City of Riviera Beach,
138 S. Ct. 1945 (2018), and Nieves v. Bartlett, 139 U.S. 1715 (2019). Of course, the
Majority Opinion did just that here, and it demonstrated why, in this case, those
considerations do not warrant an exception to the general rule that probable cause
supporting the filing of a lawsuit predicated on prior civil litigation defeats a § 1983
First Amendment retaliation claim. I therefore concur.
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