you'll hear argument next in case seventeen twenty one versus the city of riviera beach is carla thank you mr chief justice and ma'am please the court government violates the first amendment whenever it retaliates against someone because they exercise and criticize public policies or public officials and this is so even when the retaliation takes the form of an arrest for which there is probable cause section one nine hundred eighty three by its terms provides an action  lets defendants escape liability for first amendment violations by claiming that they didn't violate the fourth amendment as well our case shows why an absolute bar rule is an unacceptable reading of section one nine hundred eighty sanction the distinction in hartmann as i understand it justice ginsburg comes and rests entirely on the fact that there was absolute prosecutorial immunity for the actor who actually imposed the injury there and i see three major distinctions between hartmann and what's going on in this case the first of those is that in hartmann there was absolute prosecutorial immunity and what that meant is you could not sue the prosecutor you had just to somebody upstream but the reason why there is absolute prosecutorial immunity as this court explained in the decisions it cited in hartmann in reno and in the weight is because they court wants to avoid inquiry into prosecutorial decision making and that's because prosecutors are both independent and deliberative absolutely none of those factors is present in this case you needn't look at anything a prosecutor has done the decisions here were not made by independent actors they were made by a police officer and by a city council member whose level of animists on the record shows that this was where they have to make quick and your and your initial formulation just did not cover it just did not give any protection for that in this case is a very serious contention that enough our position is that when an officer retaliate against someone for his protected speech that is when he has what this court called in hartmann retaliatory animists and can't show because of the amount healthy standard that he would have arrested the person anyway then there is a first amendment violation and if i could point to the empirical evidence here the city cites six cases the state of alaska on page seventeen of its brief cite seventh is cites twenty seven cases in the ninth circuit i have read all of those cases and not a single one of those cases involves the kind of hypothetical that you're talking about so maybe that that's exactly what i was my question to that it's not that you start you down two tracks it seemed to me if you say the police officer is liable if he really has animists and the probable cause was not you know going to affect him once you say that you're into the hypothetical of the bar and all you've done is say the jury will decide all those questions you get to the jury in the jury has a factual question that's true of the bar case that's true of a real riot where people are out insulting the police and they're breaking windows and burning cars and every one of those cases goes to the jury then you started on a different track which is absolutely true that's not this situation this situation is someone sitting calmly behind the desk in the middle of the of the meeting not somebody out there in a bar or somebody worried about a real riot ok now you want us to draw that line or not and if you want us to draw that line how and if not how do you deal with justice kennedy's hypothetical for us so i want to make it clear that the hypothetical is extraordinarily hypothetical because the cases that are brought in the ninth circuit now under the rule were i'm sure it is but unfortunately yes no one in my mind back of it is the kind of hypothetical and it might be extremely high but yes and what i would like an answer to that question which route you want us to take those cases are not going to a jury and the reason those cases are not going to a jury is twofold first this it will not let those cases get past a motion to dismiss unless there's direct evidence of the officer saying i normally don't arrest people under these circumstances but you i don't like because you're wearing a make america hat or a black lives matter t shirt or a choose life bumper sticker there are a couple of cases like that with direct evidence those are the ones that survive a motion to dismiss second as this court said in mally against briggs and has reiterated repeatedly qualified immunity protects any officer who could legitimately have thought that it was appropriate under these circumstances to arrest this case as i say is far more typical sadly of the day that would not be the qualified immunity for a city therefore i'm sorry did not want to interrupt your answer well let's take this particular case suppose obviously there is no love lost between your client and the city of riviera beach but so suppose he comes back to another meeting and he is disruptive and he's arrested will he not be able to file a suit for retaliation and get to the jury it might be very difficult for him to get to a jury if the level of disruption is such that under the way this court has treated plausible pleading  it's not plausible to believe that it was the animists that caused the arrest you really think a suit like that could be dismissed under twelve i'm seeing the cases from the ninth circuit being dismissed all the time on the grounds that it's just not plausible and if you have a serious crime it truly isn't plausible to claim that it's animists so you don't see for example any cases where somebody is charged with mayhem and our success those are cases that have been brought is some kind of rule that will change what has been brought in the back of my mind to put sort of every card on the table is i was thinking of what justice ginsburg wrote in a concurrence in reach draw separation between cases like yours and the cases that justice kennedy and i had been most concerned about the riot cases it's utter now what do you think of that can i suggest that you look at are you really think that twamley fall require the degree of specificity that you postulated that the only cases that are going to be successfully brought her when the person has a hat on that says that he's a member of a particular group and the officer says i don't normally arrest people but because of your hat with a political message i'm going to arrest you do you really think is it a bit of an exaggeration when you say twamley and if we're going to keep everything but that case out of court i'm not saying it will keep everything up there are two kinds of cases that will go for it there are the ones where the officer says things like and these are the cases in the ninth circuit that have been allowed to go for it i normally don't arrest people but i don't like your attitude or i normally don't arrest people but we should have arrested you a long time ago so there are two kinds of cases that i think will go forward after the first these ones where somebody can plead with specificity something that the officer said or something that the city council member  and they are simply inadequate i didn't say that seems to me to take care of the broad proposition that you began with and i was curious to know if you have some fallback position so that when there is an allegation a strong is some special kind of case and you haven't been able to show me that it is i i i gave you three answers to that the first was at the pleading stage the second is qualified immunity and this court has a r qualified immunity doctrine that will get rid of every case where the officer or the other individual defendant isn't clearly violating the law if you'll remember this  immunity it's all but the willful and the ignorant and the third thing that gets rid of these cases is the mount healthy standard which is if it is a case where they would have arrested regardless of the animus that is a case where the defendant will win if i could return to the second part of what i wanted to say to you said ms carlin that this would never apply you think that in serious crimes it would never get to a jury did i did i mishear you i think that's that's correct why is that because it would not be plausible to say unless you had extraordinary evidence of animists that a police officer would not arrest somebody for rape or burglary or murder we don't expect this to go to juries much of it all well certainly that would require a reversal in our case the word felony as you know is an extraordinary broad word and there may be some crimes that are felonies that the court would not  sufficiently serious to justify it but in this case it would require serious crimes serious crimes yes i think in serious crimes cases qualified immunity should take care of every one of those cases because it's just not plausible to believe that the officer was clearly violating the first amendment we get a lot of cases particularly from where you've said the cases you've looked at were qualified immunity is applied in a case where we found it necessary to to reverse and i'm not sure that it as solidly established a doctrine is as you suggest to protect to leave we can allow this action because qualified immunity will take care of problems i think the main thing to focus on here is if you adopt an absolute bar rule which is the rule that the eleventh circuit has you're not just knocking out close cases you're knocking out cases where courts have found that there was a long standing animous that there was no justification and in this case  city is asking for far more than hartmann because in hartman all he had to show was there was no probable cause for the arrest of prosecution here the city wants us to show not only that there was no probable cause for the only crimes with which my client was ever charged but there was no probable cause for anything anywhere in the florida statutes and that is an extraordinarily broad rule that says to city council members and says t steps off the curb or wait until he drives five miles over the speed limit arrest him and make sure it's on a friday so we can spend you've got the facts a court your case is quite different from what's worrying me and puts worry me and i think justice kennedy perhaps and that is imagine a serious riot situation they exist and in that riot situation where the police have a problem because there's a sub gang and the sub gang is going around breaking windows and setting fire to things they can't arrest everybody in the sub gang there are too many of them ok so it's not going to be true that the mt healthy it would have happened anyway works because it doesn't work  will because they wouldn't have been arrested there six members of the gang and four policemen with affidavits say we could only arrest four people then we have seven more affidavits would say i saw the look on that policeman's faces soon as we called him a pig all right and i am certain that he would never have arrested this person who after all was just lighting a match he might have had a cigarette and and i'm certain he wouldn't have arrested him had it not been for the words that he heard and the policeman had to make a split second decision and i don't know now that's a cop that's the subset that he means i think by a bar ok so is there some words in this opinion that would favor  pathetically that would wall off that case from decision now i think the answer is yes this court can hold that there should be no absolute bar and that in cases where an officer confronts serious serious conditions that have to be addressed at the moment he's entitled to qualified immunity so i think ms carlin the the the reference and reichel that justice pryor was referring to talks about swift on the spot decisions where the safety of persons is in jeopardy is that the sort of language that you think would be appropriate to your heart against the kind of hypotheticals that justice breyer and justice kennedy are talking about yes i think you can say there is no absolute bar but we understand that when there is a danger to people and when an officer has to make split second decisions he's entitled either to a judgment on a twelve b six motion  entitled to qualified immunity or he's entitled to summary judgment but that doesn't justify having an absolute bar in all cases i need some help with what you've said about qualified immunity because i would generally don't understand it i  don't think there's ever a situation in which reasonable officer could think that it is lawful to retaliate based on the exercise of first amendment rights so if there is in a case a genuine issue about the officers motivation i don't see how the officer will ever be able to get dismissal based on qualified immunity well in the case we're there is a only the case where you can say there's no genuine dispute on the issue of the officers motivation and if there's any evidence circumstantial evidence of of retaliatory motives such as  person's arrested saying something that's insulting to the officer you're going to be able to infer that i don't think it's fair to say you'll be able to infer it under those circumstances that is i've seen police officers under conditions of stress where somebody says something inappropriate to them and they don't say anything back and they arrest the person who's committing a crime under those circumstances i honestly believe that the point this court makes when the officers actions and all that the plaintiff can allege are equally consistent with a lawful and an unlawful behavior by the officer twelve billion a full should require dismissal and i think if you look at what district court judges in the ninth circuit are doing they are not allowing cases to go forward if you look i read all twenty seven cases that the state of alaska cites and in twelve of those cases i think it's either ten or twelve the district court dismissed the case either on a twelve b six motion or on a summary judgment on the grounds that there was not sufficient evidence to go to a jury and retaliatory animists and in most of the cases it's important for this court to understand in most of the cases that go forward as the in our case there is a fourth amendment claim as well people are not just bringing the first amendment claim indeed eight days into the trial in this case our client was entitle to do the german as a matter of law on his fourth amendment probable cause claim and was entitled to go forward on his first amendment claim as well and the problem here is that the absolute bar rule takes a lot of cases that are quite like  what makes a case extraordinary is you can watch the video and you can read the transcript but there are a lot of other video cases out there now like ours and if i could just suggest to the court that it read one example of what the ninth circuit is doing now it's the beck case which is because different council members might be very or not she her animists was expressed a closed door meeting she was presiding at this meeting well i think that i just said once again i think you have there is no absolute bar rule that's all we're asking the court to do is to say the eleventh circuit's rule is wrong the ninth circuit's rule which is a workable rule says probable cause is a relevant factor and it's going to be in many cases  factor but where it's not relevant and where it's not dispositive a strong first amendment case should go forward because otherwise what this court is really saying is sure under citizens united make an independent expenditure sure under heffernan put a sign on the shore under mccall it demonstrate outside abortion clinic but if the government doesn't like that all they have to do is wait for you to violate any one of the rules that each of us probably violates every day and they can they can hold you for two days and they can strip search you and then they can say you have a good day and if that's what the first amendment means then all of the protections that this court is giving don't mean very much on the ground when you're dealing with local governments i counsel i was surprised you didn't make more of the fact that the basis for probable cause that the city eventually came up with disturbing the assembly was not one that they that the officer you know exactly where  listed or advanced as their justification you know resisting arrest or disorderly conduct but then i couldn't figure out what to make of it either it just seemed very seem very odd to me that that was in the case i think what's going on there is that if you have to show a fourth amendment violation in order to show first amendment violation we were kind of tied in by devon peck because what this court said there's you don't need to have probable cause was for the for the offense of a rest in order to defeat a fourth amendment claim any but also through the fourth amendment context but would it necessarily hold in the first amendment context that leaves the chief justices question sure and you could reverse in this case on the grounds that you're going to apply hartman advocated for which is that probable cause is relevant evidence but not always dispositive but certainly in our case if you applied hartmann as written you would say well in hartmann it was the offenses of prosecution if you show no probable cause on those they can't come back and say oh well there was mail fraud as well i mean it's starting to it's i do away with that and as if i remember here and the sergeant i think or whomever initially looked at the case said there is grounds for probable cause but we're not going to get a conviction so that's why we're not going to proceed now the judge said there's no probable cause on the system but you can well imagine that officers filled with out of this scour the books at the booking station and they could look for something that might fit the day as well but still not have been something they would have otherwise arrested for sure which is why we think the best rule is that probable cause is relevant but not dispositive if i may reserve mr chief justice and may it please the court during this carlin's argument i round wrote down for potential backstops to address the hypothetical hypothetical justice kennedy raised in the justice briar echoed about a police officer dealing with a in a bar i'd like to explain why none of the four that i wrote down are sufficient and why the long standing common law rule and the rule and hartman ought to be the one that applies here before that i wrote down were pleading standards qualified immunity mount healthy and a distinction between felonies or major crimes and other crimes first with respect to the putting standards it's critical to understand the police officers must concededly take account of speech when deciding whether to arrest in many situations the bar example is one of those and police officers need to have an objective and objective basis on which their conduct will be judged it is virtually impossible for police officers themselves in the bar kind of situation to desegregate their own thought processes and understand whether and recreate after the fact certainly whether they carried out an arrest because of the  content of somebody's speech and their dislike for it or because the content of somebody's speech suggested belligerence and suggested a likelihood to continue to incite violence and there was a need to arrest in order to contain the situation the problem with a pleading standard rule as the ninth circuit demonstrates is that there are many cases in which police officers and arrestees simply have a different view of what happened and the ninth circuit sends those cases to juries and regularly the juries ultimately find for the police officers but only after they've been forced to endure all of the burdens of litigation mr thomas i want to give you an opportunity to address each of you for if you want but if i may say i mean mr carlin was having some difficulty with hypotheticals but you you might have some difficulty with the facts of your case so if i could move you to the facts of your case and suggest the kind of dangers that it poses which is that in a local government there are people who become real sort of pains to local officials and local officials wanted to retaliate against them for all the various things they say charge and corruption doing whatever mr low's men did i'm sure that there is one in every town and just the nature of our lives and the nature of our criminal statute books there's a lot to be arrested for so you follow somebody around and they committed traffic violation of a pretty minor kind and all of a sudden you're sitting in jail for forty eight hours before they decide to release you so that's a pretty big problem it seems to me and it's right here in kind of the facts of this case so i guess i'd like you to respond to that justice kagan let me respond to that first in terms of the facts of this case and then more generally about the legal war that ought to be that ought to be drawn here a couple of critical things about the facts of this case one officer geary testified that he made the independent decision to arrest mr logan and that he had never heard of mr lowe xmen before the incident at which this arrest took place saturday and  act on that especially where here the testimony was that officer geary made the independent decision and had to make the independent decision he couldn't this officer has qualified immunity and that perhaps he didn't even violate the law anyway what about the city council so the city council first we could discuss that the transcript the transcript that is carlin relies on does not support the notion of a scheme to get at mr low's when there was one comment by one city council person expressing frustration followed by five or six pages of transcripts testimony in which the city council members agreed to uninterrupted many times both before and after the particular incident that was issue here and why would the jury have found in the city's favor not only on this claim but also on the other forms of mr of retaliation that mr low has been alleged so on the facts of this case first of all i'd dispute his current characterization of them second and more importantly the court as in hartmann should not make a general rule for the facts of this case as the network arliss of what happened before or after i found the video pretty chilling i mean the fellow was up there for about fifteen seconds and the next thing you know is he's being let off in handcuffs speaking in a very calm voice the whole time now the council may not have liked what he was talking about but that doesn't mean they get to cough and leave him out well there was probable cause in that situation to arrest him for unlawful disturbance he repeatedly failed to heed ms wade and officer then he's trying to say and i've been telling you that other people are corrupt why is that off topic because the corruption that he alleged related to palm beach county corruption as the district court found that the topics to be addressed  these meetings had to relate to the top its role in the city not related to the county city within the the city is within the county but that is the wind that the policy drew is a city council meeting to talk about city business and city officials not county officials the the more fundamental point here though is that as in hartman the corded in footnote ten and hartman put it rather colorful you don't design a retirement system because you might win the lottery which is to say you don't design the general rule for the characterization of hartmann in hardeman the court said that prosecutorial immunity was an added reason for the rule that the court adopted but the heart of the court's analysis in hartmann was about causation it was about the complex causation problems that arose in that case because you had multiple actors you had the police officer who allegedly induced the prosecutor to act here you have at least as as significant a causation problem because of the ways in which police officers concededly must account for speech in an arrest and police officers should not be deterred from making with jim interests whether for major crimes or for minor crimes out of fear that later on there will be an allegation that perhaps the real reason for the arrest was the blood was on her shirt we don't we don't disagree that police officers shouldn't be arresting for retaliatory and so correct and now if we accept that premise that the first amendment is valuable enough to us to protect you from government computers and the facts in this case that's what they a that's what we're suman from the facts and shouldn't we have a remedy and shouldn't we have a remedy that takes care of those arrests th only because of animus because mt healthy says if you would have arrested anyway you're not liable but what you're doing is to providing people who would not have been arrested except for their first amendment speech from having any remedy whatsoever just as some are you i know you say something else will take care of it but the reality is something else usually doesn't take care  just to sort of my or at the end the premise of your question is that there is an epidemic of retaliatory arrests out there although i'm not even talking about an epidemic i'm talking about a constitutional wrong because either way you're saying we shouldn't create a system for this kind of violation but why should i create a system to exempt this from our regular first amendment process because there might be one or a few cases that fall through the protective barriers that this kath pointed to first because there is no workable system to carve off just this case from the mine run bar incident case second because there are other remedies besides damages actions in individual cases and third arrest somebody on account of his political speech in a political form and it seem to me that that is a very serious and it seems to me you can cabin that off somehow from the bar two petitioners didn't give us any specific quid to the one way but it seems to me that the court in order to protect speech in the political form can make that distinction at least in this case maybe wait for other cases to see if it should be expanded justice kennedy as in hartmann the court said it was not possible to create a workable system that would have been off a particular kind of speech or a particular kind of violation i don't believe there is here either if you look at the instances that in the ninth circuit have gone to trial many of those involve political speech as well consider for example the ballantine case cited cited in our brief that was the case where protesters were repeatedly chalking the sidewalk with anti police messages messages a form of political speech the police repeatedly tried to work with them and to suggest instead of chalking use this other form of protest the council i want to account for your concerns with the chief justice suggested which is perhaps probable cause to arrest for the charge made would tend to defeat an inference of would tell you but to imagine probable cause for up years later at trial after scouring the books and the judge sending everyone to do more homework to find more statutes and more books why might that not be different consideration it is in the fourth amendment but the core teaching of it is is that police officers are not lawyers with their trained to do is to identify a course of conduct and determine whether there is probable cause that some some law was broken during that time but they are not trained and they are not required to specifically identify at the time of the arrest precisely what section of the code was via for certain and i'm not suggesting that the failure to get it right would itself  invite liability but why wouldn't it at least raise the possible inference of retaliation there in a way that it wouldn't if you got it right for the arrest and charge  again because police officers simply are not trained to think in that particular mindset if if a police officer sees me have a car accident and determines that i am at fault for it the police officer is not required at that moment to be thinking of her no he didn't get  the moment and maybe give him a couple of chances even at the apple but to do wait till trial and in the middle of trial and sending lawyers to do homework to find more charges does that is a different in any meaningful way or it's ok or you use the fourth amendment or whatever we're the officer must make singularly swift on the spot the situations and the safety of persons or property is  ok now i suppose i don't see anything too terrible about writing those and what harm would be done you would of course lose your case which i consider perhaps you would consider a serious harm but but but none none the less what harm would happen to the interests that you've heard articulated that the harm that would happen is that this court has repeatedly recognize that police officers need objective bright line rules not five or six or seven factor tests that they then look at i mean it as a five or six or seven factor test what i really meant to to focus on was the last one because i've heard discussion on the others and that is the police officer does have the immunity that they search in this situation where and i could repeat it but maybe you wrote it down but it's all repeated if you want it where there is a singular need because those limitations failed but because there was other evidence of things that that fit that didn't fail put made this trial cases many of them involved excessive force claims which can often be reflective of add a missing a different way than a mere arrest is and as was pointed out by your adversary of the twenty six the alaska brief pointed to twelve of them were just missed that the motion to dismiss things so people bring things with doesn't mean that they are viable sometimes they are and sometimes there are not far too often they are viable through trial and only at that point does a jury find in favor of the officers and in many of these cases the basis for finding a triable question was simply that the police officer was aware of the content of some speech and that was enough in order to create an inference that maybe the real reason for the arrest was not going to arrest the we have we have a difference of opinion perhaps i don't think i have to  reason that there was a triable question was simply a difference of opinion about what happened and that is also precisely why qualified immunity will not do any work to protect police officers if mr low's means rule becomes the law at that point in the typical case the only thing left to be tried if there is an allegation of a retaliatory motive is what was the real motive in the officer's head that's not something to which qualified immunity attaches that is going to be a fact question for a jury with respect to the suggestion th justice kagan raised earlier between major and minor crimes police officers can't have a taxonomy in mind of what's a significant enough crime to arrest for and what's not and moreover even some seemingly minor crimes as the amicus brief of the district of columbia numerous states points out even some seemingly minor crimes can be very important to enforce for community policing concerns and so the idea of having a test where only where major crimes the police officer somehow gets more deference than for minor minor crimes doesn't work in practice i also like to point out that the mr low's man and his or miki have surveyed decades of cases they've not come up with a single case not even one in which a police officer has been held respond the alleged animus was on the part of the city council but in order to have a complete violation it would need to be carried out by the officer which requires an inquiry into the officer state of mind in the officers intent more moreover there is no basis well mr chief justice and may please the court i have three points the latter two are about law and i hope i'll get to them but i want to start with what the world looks like because i think there's a serious disagreement here and this case arises on about the worst possible facts rise or fall by them they divide down i think in a three basic buckets protest cases noise ordinance cases and other cases where there's a confrontation between the rusty and the officer and there's a failure to follow a lawful order and the question is what motivated the arrest the fear and fall the order or the speech and i think what we're trying to what what the united states would submit is tumbling at ball are not going to work for the reasons they haven't worked in the lower courts the plaintiffs never just point to their speech they always point to other things about the interaction with the officer and many courts have deemed that sufficient to get past the pleading stage qualified immunity isn't going to work for the reasons justice alito gave i don't think the language in reichl is going to work because that was designed for protective details these are all on the spot decisions even the officers decision in the city council here and a lot of these cases don't involve the safety of persons or property i mean take a case like galore nick the one all the way to the circuit somebody trespassed into a government trailer in order to criticize the government and the question is no question is trespassing to they arrest him for that or because once he got inside the trailer he was criticizing people working in the trailer i don't know that you could say that there was a real safety concern there and there's no property concern in any of the noise ordinance cases or even a lot of the protests cases i've really caution the court away from addressing the devon park rule here petitioner hasn't challenged it it's a very difficult question it's a very different question from whether you need to show an absence probably cause what offenses you should have to show that for i think there are very good reasons why the rational impact should have high here regardless so then i think you're really just down to what justice kennedy was getting at which is look this looks like an official policy of the municipality and indeed the parties seem to agree that's what the jury found and i think you could rest on that although for the reasons that the city's council gave there's no textual or historical support for that in the statute or common law and i think hartman's footnote ten already says we designed the constitutional tort from the minor run of cases not for the needle in the haystack in this case really is i mean it really i agree that the facts you are troubling i also just think that this is almost a category of one it just does not look like the typical cases for which you design the constitutional and that's what hartmann tells us mr well we allow people to sue under nineteen eighty three for discriminatory arrests under the equal protection clause and without showing anything about whether probable cause exists or not what has been the experience with respect to those cases and why is this area why should the rule be any different than that one so i think what we'd say is different for a couple of reasons but one similarity and this is one of the legal points i want to make those cases are about race race the court has said is so rarely a proper consideration for officers that the court does treat them differently speech is the kind of thing that officers often can and must in these situations take account of and even there even though it's more subjective than in virtually every other context that even there you've got the objective screen of armstrong so you've still got to prove that similarly situated people were treated differently and i think setting aside the facts of this case the legal anomaly that petitioner wants is to say look for every other constitutional tore claim retaliatory prosecution kind of person on the selective enforcement of the fourteenth the false arrest on the fourth you've got some objective screen whether it's the absence of probable cause whether it's armstrong similarly situated requirement and what they're really saying is for this subcategory of claims in the first moment no objective screen fact question it's going to go to the jury and all of these cases are virtually a he said she said the officer was going to arrest me and so i called him names and i said really ugly things and the officer said no i was going to arrest them for failing to follow my lawful lawful order one of the grounds and i don't i'm not quite sure how you could use it we've been talking about how bad the facts are and you know how difficult it is to apply this is not a situation where the police are out in the street and something's happened and they're looking at the you know what kind of slogans they have what they're shouting a lot's going on this is you know in the city council during a time specifically set aside for citizens to talk about whatever the council is talking about and comment on is there any basis there for limiting it to the it seems to me intensely free speech environment that we're talking about so maybe right there at the tail end mr chief justice i mean i understand the impulse and the difficulty with the on the spot language is that even here the officer is making on the spot decision you could try to limit that to i don't know that in the field w capture it because it's i'm not sure there's a difference between i'm not sure how the court would get into what's in the field and what's not whether you're in the field when you're in the government trailer or when you're out on the streets but you're not in the city council meeting you could try to tie it to the nature of the city council meeting the fact that you both have the official policy and that it was in the context of a meeting where people were designed to air grievances or talk about what they wanted against a city again i don't think that's got much text historical support behind it and hartman specifically said look we're not going to design this thing for the one hundred thousand case and i think even more important here because it's so much easier to allege retaliatory arrests and there are so many more  not on the spot and you also say here they're suing a person who is not a policeman and so they have to show the causal connection so the causal connection is as again justice  significant you know i thought and therefore since you have to show those connections between this decision you know the person who is the policeman it doesn't really affect the police oh i just pray if the court assigns a rule in such a way that it recognizes this is the one in a thousand and it wants to pick up that one though not the others some of the court didn't hartman but i suppose you could do it here i think the easier way to analyze it is to say look and petition doesn't dispute that this is the basic question page nine of the reply are claims of retaliatory arrest more like claims of retaliatory prosecution in the hartmann or more like claims of retaliation by employees and government contractors undermount healthy and i think what you'd say is book arrest and prosecution are close related steps in the criminal process they involve the same body of valuable probably cause both got a very hard reason they are different is because in hartman you had an indictment and you just looked at the indictment and said is there probable cause for that or not i mean here we have this ridiculous spectacle of going through the statute books for a month trying to find something that this man may have violated and there's just got to be a big difference between those two inquiries but i completely agree again it's difficult and  take here so we haven't had the opportunity brief it and we very much like to do so because i think it's too easy to just say discard the devon pact rule because what the court's on the devon pack is look police arrest on the basis of a course of conduct you're waving a gun in the year in the arrest you they don't know exactly which provision of the criminal code that violates they go back they talk to their supervisor they may have an exchange prosecutors they may go before a grand jury it's very difficult to isolate the exact point in that analysis where you should freeze frame it and say what were the offens cause i agree that here i've got no way to trial for trial so i think justice course which i think of before trial rule would be perfectly fine again as long because i think it reflects the realities of policing which is that police aren't lawyers they arrest based on conduct and all the same reasons the court applied the devon peck rule are exactly why the common law i think on the best reading had the devon pike rule too and it was only the common law didn't know about speech the restatement recognised that you may be pulled over for speeding even though that you think it's because you've complained about the department the common law took all of these things into account too and in its wisdom i don't think it created an epidemic that requires drastic sure that searches for the needle in the haystack this is the rule in the majority of circuits and what's notable is that unlike a lot of these cases it's not as of petitioners a mickey have come in saying there is some huge problem in the second fourth fifth eight and eleven circuits they really have sort of pointed to the facts of their case and i agree it's troubling but in the real world i think the far more serious danger is subjecting police departments across the country to claims that are easy to allege and difficult to disprove and weigh in virtually that exact same balance and hartmann what the court said is the game is not worth the candle we're not going to try to does on the constitutional tour for the one of the thousand case there are other remedies the get out that same one in a thousand but might there not be a problem that now that we have this case and we have to decide this case and if we decided your way you know maybe it's a green light to everybody to make a not the one in a thousand case and to start really going on there are lots of small towns and in america and there are lots of cranks in those small towns and there are lots of relationships that go sour between officials and some members of the populous and you know what about that what about you know finding that guy every time he doesn't quite stop when he makes a right on red and put him in jail for a while so a couple of things one again i i don't think we ought to believe that the only ball work against backsliding on the first amendment is damages suits but more importantly what i'd say is if that's the kind of rule they want you to put in place they ought to have to show that the common law which had this rule for hundreds of years was problem they all have to show you that hartmann has created an epidemic of retaliatory prosecutions the other with least have to show there are more retaliatory rests in the second fourth fifty the eleventh circuit tonight the tenth and they haven't tried to do it because what they'll find i if you look in those cases is there are a lot of claims in those circuits but they don't turn out to have a lot of merit to difficult to defend against and that's why we think the rule makes sense thank you counsel four minutes  thank you i'd just like to begin with the common law and ask the court to read its own decision indians which is the only decision by this court talking about probable cause and false arrest that ant to dates the passage of section one th and here's what the court says on page four zero two probable cause or not is of no further importance than is evidence to be weighed by the jury in connection with all the other evidence that's the rule we're asking for we're asking for the common law rule here and if you says people keep getting mistaken between malicious prosecution which has always had a no probable cause requirement and false imprisonment of which false arrest is a subset which has never had that requirement at common law as part of the plaintiff's case in chief the second point i'd like to make is a point that goes back to the devon peck issue which as justice course which pointed out might be perfectly sensible in the fourth amendment context but not when you're talking about first amendment values because first amendment values are the core of the first amendment is an anti retaliation principle and do not be do not be fooled if you tell city councils that if they deny somebody a permit they can be sued for damages if they fire him from his job they can be sued for damages if they don't give him a zoning variance they can be sued for damages if they don't give him a parade permit they can be sued for damages but if they arrest him and they can come up with anything even eight years after the fact that might be something for which there is probable cause not even showing that he actually committed the offense of disk disrupting a religious assembly or assembly for other purposes but just that an officer could believe probable cause you are giving a green light to every vengeful city council in america to go after people when they demonstrate against abortion clinics when they demonstrate about police when they protest as owning decisions the first amendment really requires that there be some remedy and the text of section one nine hundred eighty three gives that remedy it says we have somebody subject or causes to be subjected to a violation and that that makes it clear that section one thousand three contemplates cases like this one in which a city council caused someone to be arrested all we ask is that this court hold that probable cause is not an absolute bar in cases where retaliate retaliation is proven thank you thank you counsel the case was submitted