Whether the Nieves probable cause exception requires identifying comparator arrests

QUESTIONS PRESENTED The questions presented to this Court are: 1. Whether, in the case of an alleged retaliatory arrest in violation of the First Amendment, Nieves v. Bartlett requires a plaintiff to identify other individuals who engaged in similar conduct yet were not arrested. This is the same question that will be decided in Gonzalez v. Trevino. 2. Whether the Mt. Healthy burden-shifting standard adopted in Lozman v. City of Riviera, 138 S. Ct. 1945 (2018) applies equally to warrant-based retaliatory arrest claims. Though phrased differently, this is much like the second question that will be decided in Gonzalez. 3. In the case of an arrest made with a warrant, whether the Fourth Amendment requires the arresting officer to have probable cause specifically for the crime cited in the warrant or is it constitutionally sufficient for the officer to have probable cause for a separate crime not mentioned in the warrant. Last month, this Court granted certiorari in Gonzalez v. Trevino, No. 22-1025, certiorari granted (October 13, 2023) with two questions presented: (1) whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened, and (2) whether the Nieves probable cause exception is limited to individual claims against arresting officers for splitsecond arrests. This petition seeks review of these same questions presented in Gonzalez. This petition further seeks review of a circuit split under the Fourth Amendment over whether Devenpeck v. Alford, 543 U.S. 146 (2004) applies to ii warrant-based arrests or is limited to warrantless arrests. Devenpeck holds that, based on objective facts then known to the arresting officer, the officer needs probable cause to arrest the plaintiff for some crime, even if different from the offense cited. The Fifth Circuit held Devenpeck does not apply to warrantbased arrests. The Eleventh Circuit has reached the opposite conclusion. Notably, the Fifth Circuit in this case did not follow its own authoritative precedents, but upheld the warrants, finding probable cause for a crime not cited in the warrants. Here, Mark Mayfield supported a Republican party candidate challenging the sitting U.S. Senator in the primary. To discredit the incumbent Senator, another supporter took a photo of the Senator’s wife and posted it in a political video. City officers used alleged co-conspirator crimes (voyeurism and vulnerable adult statutes) to obtain search and arrest warrants for Mayfield, even though they knew the elements of the statutes were not met. The warrants and supporting affidavits were prepared in coordination with municipal policy makers who were making statements indicating their intent to use the arrest as retaliation against the political activity. The Fifth Circuit held that (1) probable cause existed, though for a crime not cited in the warrants, and (2) Mayfield was required to present comparator evidence. Tragically, after his public arrest and humiliation, Mayfield died from an apparent selfinflicted gunshot.