On December 4, 2014, two photographers found themselves in the custody of the New York Police Department. Both were arrested while documenting a protest in Times Square over the decision not to indict the police officer responsible for Eric Garner’s death. One, Xavier Roper, had been photographing the police from the street when he was ordered, along with other protestors, to move to the sidewalk. Barricades and a “wall of NYPD officers” prevented Roper from reaching the sidewalk, and he was arrested for his failure to comply. The other photographer, William Logan Lockett, had also been documenting the police and protestors when he crossed the street in search of a restroom. Lockett did not use the crosswalk, which was blocked by the police, and was arrested for disorderly conduct.
After criminal charges against the photographers were dismissed, Roper and Lockett joined as plaintiffs in a lawsuit against the NYPD officers and the City of New York for First Amendment violations. They claimed that they were arrested in retaliation for the protected speech that they had engaged in both as protestors criticizing the police and as photographers documenting them.
In the Second Circuit, however, retaliatory-arrest claims face a considerable doctrinal hurdle: plaintiffs must demonstrate that the officers had no probable cause for the arrests. In fact, probable cause for any crime—“not necessarily for the crimes cited by the officers or ultimately charged”—is a complete defense. Consequently, it did not matter that Roper and Lockett could plausibly claim that officers lacked probable cause to arrest them for disorderly conduct when police barricades prevented them from complying with orders to disperse. More than a year after the incident, the officers argued for the first time that they had probable cause for traffic violations committed by Roper and Lockett, and the case was dismissed.
The pleading standard that ended the photographers’ case in Roper v. City of New York is referred to as the “no-probable-cause requirement.” It represents a significant burden for plaintiffs alleging retaliatory arrests under the First Amendment and has generated a notable split amongst the federal courts of appeals. Understanding its role in such claims—and the Supreme Court’s past and present opportunities to shape that role—is critical at a time when citizens are directing fresh scrutiny towards the administrators of our criminal justice system in cities across the country.
Across circuits, a prima facie claim of First Amendment retaliation is established by proving at least three elements: (1) the speech was constitutionally protected, (2) an injury was caused by the defendants’ actions (i.e. the chilling of speech), and (3) a showing of causation that demonstrates that the defendants’ actions were motivated by animus towards the plaintiffs’ protected speech. The question that has divided courts is how probable cause fits into this formula.
In the Ninth and Tenth Circuits, a defendant’s showing of probable cause serves only to dispute the causation element by demonstrating that something other than retaliatory animus motivated the arrest. In these courts, a claim of retaliatory arrest can survive even if probable cause is proven. The Second, Fourth, Fifth, Eighth, and Eleventh Circuits adhere to the no-probable-cause requirement, adding what amounts to a fourth prong to the pleading requirements. Still other courts remain in limbo, without a clear rule. The Supreme Court’s jurisprudence in the area has not provided clarity.
The split outlined above was already developing when the Supreme Court decided Hartman v. Moore in 2006. In Hartman, the Court held that plaintiffs claiming their prosecution was engineered in retaliation for protected speech must prove the absence of probable cause in pressing the underlying criminal charges. In so doing, the Court explicitly distinguished retaliatory-prosecution claims from “ordinary retaliation claims.”
Writing for the majority, Justice Souter noted that retaliatory-prosecution claims cannot be brought against the completely immunized prosecutor who directly caused the injury. As a result, such claims can only be brought against the official who “influenced the prosecutorial decision” and must rely on a “complex [causal] connection” between the alleged retaliatory animus of the defendant official and the prosecutor’s action. This attenuated causal chain stands in sharp contrast to the typical retaliation claim where the plaintiff need only show the connection between one person’s retaliatory animus and that same person’s “injurious action.” Justice Souter reasoned that a showing of the absence of probable cause was a necessary “bridge” for retaliatory-prosecution claims to connect the non-prosecuting official’s motive and the prosecutor’s action.
Despite this explicit contrast at the heart of the Court’s rationale in Hartman, the decision exacerbated the division among the circuits over the standard for retaliatory arrests. Some courts interpreted Hartman as a broad doctrinal shift applying to the pleading standards for retaliatory claims generally, while others emphasized its narrow application.
Avoiding the Question
The Supreme Court had the opportunity to resolve this split as recently as 2012. In Reichle v. Howards, the Court granted certiorari on the question of whether the no-probable-cause requirement articulated in Hartman applied to retaliatory-arrest claims. However, despite acknowledging that Hartman had “injected uncertainty into the law governing retaliatory arrests,” the Court sidestepped the issue by resolving the case on qualified immunity grounds instead. The majority opinion, written by Justice Thomas, skipped the merits question and held that the officials were entitled to immunity because the doctrinal uncertainty meant that it was “not clearly established that an arrest supported by probable cause” could violate the First Amendment at the time of the arrest.
Even while avoiding the merits question, Thomas’ opinion did suggest some similarities between retaliatory prosecution and arrest claims that might support extending the no-probable-cause requirement to the pleading standard of the latter. However, Thomas was careful to point out that Hartman’s rationale was specific to retaliatory-prosecution claims as a result of the complex causal chain in such cases. Justice Ginsburg also emphasized this distinction in her concurring opinion, pointing out that a “similar causation problem will not arise in the typical retaliatory-arrest case” where the plaintiff can sue the arresting officer directly and show the basic causation between the official’s animus and their action. Ginsburg went so far as to argue that Hartman’s “no-probable-cause requirement is inapplicable” to the “usual retaliatory-arrest case.”
Lozman v. City of Riviera Beach, Florida
The Supreme Court again has the opportunity to resolve this issue. A case out of the Eleventh Circuit, Lozman v. City of Riviera Beach, Florida, is currently pending before the Court. The case, brought against a municipality rather than the arresting officer, is attractive because it does not involve the messy issue of qualified immunity. But issues persist, including the plaintiff’s failure to challenge the applicability of Hartman below and the viability of the plaintiff’s claim—under the standard for municipal liability set out by Monell—that the city’s policy or custom inflicted the injury. While the petitioner offers convincing evidence that these problems are irrelevant, the handling of Reichle may be of greater concern for his effort. The fact that the Court was willing to avoid deciding the merits of the case and shelve the issue by proceeding to qualified immunity’s second prong indicates an unwillingness to confront the split directly.
Whether or not certiorari is granted in this case, the growing popularity of the no-probable-cause requirement amongst the circuits is problematic. Observers have pointed out a variety of issues with applying Hartman to retaliatory-arrest claims, including that the standard is easily manipulated by pretextual claims of probable cause for minor offenses, that courts should be able to consider the many factors motivating an arrest without deferring absolutely to the judgment of law enforcement on the single factor of probable cause, and that the special status of speech rights entitles them to greater protection.
Beyond the difficulty in mapping Hartman’s reasoning onto retaliatory-arrest claims and the negative ramifications of doing so, the risk of chilling speech is considerable. The Court has stated clearly that retaliation by government officials “offends the Constitution [because] it threatens to inhibit exercise of the protected right.” The national debate over police tactics and use of force continues to bring officers face-to-face with their sharpest critics in public protests. Away from the widely publicized demonstrations, citizens are questioning and observing their police officers with new technology and heightened scrutiny. The no-probable-cause requirement risks over-burdening plaintiffs and limiting their ability to defend that public criticism from retaliatory governmental action.
 See Roper v. City of New York, No. 15 Civ. 8899 (PAE), 2017 WL 2483813, *1 (S.D.N.Y. June 7, 2017).
 Id. at *3.
 See Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
 Roper, 2017 WL 2483813, at *3 (citing Marcavage v. City of New York, 689 F.3d 98, 109 (2d Cir. 2012)).
 Id. at **3–4.
 Hartman v. Moore, 547 U.S. 250, 259 (2006) (recognizing such a requirement in the context of retaliatory-prosecution claims).
 John Koerner, Between Healthy and Hartman: Probable Cause in Retaliatory Arrest Cases, 109 Colum. L. Rev. 755, 759–60 (2009).
 See Ford v. City of Yakima, 706 F.3d 1188, 11198 (9th Cir. 2013); Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011). These circuits adhere to the general rule for retaliation claims set out in Mt. Healthy City School District Board of Education v. Doyle, whereby the burden is placed on the defendant to show that they would have made the same decision without the plaintiff’s protected speech. See 429 U.S. 274, 287 (1977). Though Mt. Healthy deals with the retaliatory termination of a government employee rather than a retaliatory criminal procedure, some observers have argued that it is a better model for retaliatory-arrest claims than Hartman. See Katherine Grace Howard, You Have the Right to Free Speech: Retaliatory Arrests and the Pretext of Probable Cause, 51 Ga. L. Rev. 607, 643–44 (2017) (arguing that cases of First Amendment retaliatory-arrest are more analogous to First Amendment retaliatory-termination claims than retaliatory-prosecution claims given the less-attenuated theories of causation and the extreme degree of discretion afforded to prosecutors); Koerner, supra note 12, at 777–78, 789 (arguing that courts should only depart from Mt. Healthy in retaliatory-arrest cases where there is more complex causation due to the external influence of a government official on the police officer or where a showing of no probable cause has high probative force and therefore imposes little cost on the plaintiff, as in cases of felony arrest where officers may have less discretion and probable cause will be far more probative of causation).
 See Ford, 706 F.3d at 1196–97.
 See Pegg v. Herrnberger, 845 F.3d 112, 119 (4th Cir. 2017); McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010); Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008); Dahl v. Holley, 312 F.3d 1128, 1236 (11th Cir. 2002); Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
 See Dukore v. District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir. 2015) (noting “widespread instability in the law on the precise question of probable-cause arrests”); Wesley v. Campbell, 779 F.3d 421, 435 (6th Cir. 2015) (Noting that the Sixth Circuit has not resolved whether a lack of probable cause is an element in wrongful-arrest claims); Thayer v. Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012) (Noting that the “case law is unsettled on whether probable cause is a complete bar to First Amendment retaliatory arrest claims” and resolving the case sua sponte on the grounds of qualified immunity).
 547 U.S. 250, 252 (2006).
 Id. at 259.
 Id. at 261–62 (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)).
 Id. at 262.
 Id. at 263. In addition to the complex causal connection, Justice Souter also pointed to the presumption of regularity that applies to prosecutors, which makes proving the influence of another government official even more difficult. See id. The opinion further reasons that the no-probable-cause requirement already has “obvious evidentiary value” for a plaintiff trying to craft the difficult theory of causation in these cases and therefore adds little burden or cost to such plaintiffs. Id. at 265.
 See Williams v. City of Carl Junction, 480 F.3d 871,876 (8th Cir. 2007) (“Supreme Court’s holding in Hartman is broad enough to apply even where intervening actions by a prosecutor are not present”).
 See Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) (finding that the claim at issue did not “involve multi-layered causation as did the claim in Hartman.”).
 See Reichle v. Howards, 566 U.S. 658, 663 (2012).
 Id. at 670. The qualified immunity inquiry includes two prongs: (1) whether a statutory or constitutional right was violated and (2) whether the right was “clearly established” at the time of the alleged violation. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). However, the Supreme Court has found that courts have discretion over the order with which they consider the prongs and can resolve cases by finding that the right was not clearly established without determining whether the right actually exists. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
 Id. at 668 (pointing to the similar availability of evidence regarding probable cause and the relevance of such evidence to claims that retaliatory animus caused the arrest).
 Id. at 668–69.
 Id. at 671 (Ginsburg, J., concurring).
 Lozman v. City of Riviera Beach, 681 Fed. Appx. 746, 749 (11th Cir. 2017), petition for cert. filed, (U.S. July 31, 2017) (No. 17-21).
 Respondent’s Brief, Lozman v. City of Riviera Beach, Florida, No. 17-21, at 7, 9 (Oct. 11, 2017).
 Petitioner’s Reply, Lozman v. City of Riviera Beach, Florida, No. 17-21, at 2, 4 (Oct. 6, 2017) (pointing out that the Supreme Court can grant review with respect to any issue pressed or passed upon below and arguing that the issue of Monell liability can be left to be decided on remand).
 See Linda Zhang, Retaliatory Arrests and the First Amendment: The Chilling Effects of Hartman v. Moore on Freedom of Speech in the Age of Civilian Vigilance, 64 UCLA L. Rev. 1328, 1356 (“The no probable cause rule would disproportionately harm individuals who are arrested with probable cause of a routinely unenforced violation, even though such an arrest provides a strong inference of a retaliatory motive.”).
 See Howard, supra note 13, at 634 (“Because the no-probable cause rule defers to the judgment of law enforcement, its application does not give courts the ability to strictly scrutinize the government action.”); Koerner, supra note 12, at 788 (pointing out that, since officer’s exercise considerable discretion in deciding to arrest for minor offense, “probable cause is not particularly probative evidence of what the defendant officer would have done, absent the plaintiff’s protected speech.”).
 Howard, supra note 13, at 636 (“This kind of enhanced scrutiny [for content-based regulation of speech] is antithetical to the idea that the existence of arguable probable cause can prevent a claim from moving forward, without even providing an opportunity for the plaintiff to demonstrate that the probable cause was pretextual. Courts approach speech regulations with far more suspicion than they review probable cause in the Fourth Amendment context.”).
 Crawford–El v. Britton, 523 U.S. 574, 588, n. 10 (1998).