Ninth Circuit Notes Split, Concludes That Plaintiff Need Not Plead Absence of Probable Cause in Retaliatory Arrest Claim

Per Skoog v. County of Clackamas, 2006 WL 3353985 (9th Cir. Nov. 20, 2006):

Royster also asserted qualified immunity in his defense of the claim that he retaliated against Skoog for filing this lawsuit against the County and another officer. Turning to the first prong of the qualified immunity analysis, we must examine the facts pled in the light most favorable to Skoog to determine if he has asserted a violation of the First Amendment.

To demonstrate retaliation in violation of the First Amendment, Skoog must ultimately prove first that Royster took action that "would chill or silence a person of ordinary firmness from future First Amendment activities." The parties do not dispute that searching someone's office and seizing materials can satisfy this first requirement. The second requirement is the focus in this case. That requirement involves causation. Skoog must ultimately prove that Royster's desire to cause the chilling effect was a but-for cause of the defendant's action. Whether a plaintiff must plead the absence of probable cause in order to satisfy this second requirement and state a claim for retaliation is an open question in this circuit and the subject of a split in the other circuits. [FN31] After close review of the relevant precedent, we conclude that a plaintiff need not plead the absence of probable cause in order to state a claim for retaliation.

FN31. Compare Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir.2002); Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir.2002), Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir .2001), and Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir.2000) (holding that an absence of probable cause was required in claims of retaliatory arrest); with Greene v. Barber, 310 F.3d 889, 895 (6th Cir.2002) and DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir.1990) (holding that a claim for retaliatory arrest could be made even if probable cause existed for the arrest).