S.D. Ind. Discusses Split Re Whether the Existence of Probable Cause Precludes a First Amendment Retaliatory Arrest Claim

Per Baldauf v. Davidson, Slip Copy, 2007 WL 1202911 (April 23, 2007):

[T]he court must first address whether the existence of probable cause precludes a First Amendment retaliatory arrest claim. Contrary to Baldauf's assertion, the court did not assume a ruling on this issue in its Entry. It did not need to reach this issue then, but it is necessary now.

The Seventh Circuit has not addressed the question directly. In Abrams v. Walker, 307 F.3d 650, 657 (7th Cir.2002), overruled on other grounds by Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir .2004), one of the parties asked the Seventh Circuit to find the existence of probable cause to be a complete defense to a First Amendment retaliatory arrest claim. While noting that such a decision would parallel the rule that probable cause is a complete defense to a false arrest claim, the court declined the invitation to issue a ruling. Id. Other circuits have split over this question, but the extent of their rulings is not entirely clear.

For example, in Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.2001), a bar owner alleged that police officers arrested him, following an altercation at his pub, in retaliation for criticisms he had made of the police while campaigning for office months earlier. The court stated that because police officers had probable cause for the arrest, the court did not need to inquire further into the officers' motives. Id. However, the court also noted that were such an inquiry to be made, the bar owner had produced no evidence of the officers' motive. Id. Given the court's focus on the time between the bar owner's criticisms and his arrest, and the lack of evidence regarding retaliatory motive, Curley might not stand for a blanket rule in the Second Circuit that the existence of probable cause precludes all First Amendment retaliatory arrest claims. Compare Redd v. City of Enterprise, 140 F.3d 1378, 1383-84 (11th Cir.1998) (declaring that when a officer has probable cause to arrest someone, or qualified immunity in the sense of “arguable probable cause,” he is immune from First Amendment claims arising from that arrest) with Greene v. Barber, 310 F.3d 889, 895-97 (6th Cir.2002) (suggesting that probable cause would not defeat a retaliatory arrest claim). But see Barnes v. Wright, 449 F.3d 709, 720 (6th Cir.2006) (stating that Greene's holding had been modified by a Supreme Court ruling but leaving the extent of that modification an open question).