Whether the probable-cause exception to retaliatory arrest claims under Nieves v. Bartlett can be satisfied by generalized evidence of selective enforcement without specific comparator arrests

No question identified. : To the Honorable Brett Kavanaugh, as Circuit Justice for the United States Court of Appeals for the Eighth Circuit: In accordance with this Court’s Rules 13.5, 22, 30.2, and 30.3, Applicant respectfully requests that the time to file his petition for a writ of certiorari be extended for 60 days, up to and including Friday, May 10, 2024. The Court of Appeals issued its opinion on September 6, 2023 (Exhibit B) and issued its order denying rehearing en banc on December 12, 2023 (Exhibit A). Absent an extension of time, the petition would be due on March 11, 2024. The jurisdiction of this Court is based on 28 U.S.C. 1254(1). Judgment Sought to Be Reviewed This case involves an important question on which this Court has already granted certiorari in Gonzalez v. Trevino, No. 22-1025: Whether the probable-cause exception to claims for retaliatory arrests that this Court announced in Nieves v. Bartlett, 1389 S. Ct. 1715, 1727 (2019), can be satisfied by objective comparator evidence other than specific examples of arrests that never happened. Unlike Gonzalez, which concerns a months-long scheme to arrest a government critic orchestrated by a mayor, police chief, and Detective,” this case concerns an on-the-spot decision to make an arrest by an on-the-scene police officer. While Applicant Mason Murphy was walking along the right side of a rural road in Missouri, Respondent Officer Michael Schmitt stopped him and demanded identification. Murphy asked why, and Schmitt accused him of being drunk. (He was not, and Schmitt later admitted to another officer on the scene that Schmitt did not smell alcohol on Murphy.) The two continued to argue, and Murphy continued refusing to identify himself. Instead, Murphy criticized and challenged Schmitt for poor police conduct. Ex. B at 2, 6-7. After about ten minutes, Schmitt arrested Murphy. Murphy asked why. Schmitt refused to answer. On a verbally contentious drive to the station, Murphy again asked why he was being arrested. This time Schmitt responded that he had arrested Murphy for “failure to identify.” Once at the station, Schmitt made a call to an unknown person and said he “saw [a] dip shit walking down the highway” who “would not identify himself” and “ran his mouth off.” Schmitt then asked the person, “What can I charge him with?” Despite all of Schmitt’s stated misgivings about an appropriate criminal charge, he insisted Murphy “sit here for being an asshole.” After roughly two hours in jail, Murphy was released. Ex. B at 2, 6-7. Murphy sued Schmitt for retaliatory arrest, but he could not contest probable cause because a Missouri Statute criminalizes walking along the right, as opposed to left, side of the road. Mo. Rev. Stat. § 300.405.2. As a result, Murphy’s case was subject to dismissal under Nieves’s rule that “probable cause should generally defeat a retaliatory arrest claim,” unless Murphy’s case fell into a carve-out sometimes called the “jaywalking exception”: [A]t many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest. Nieves, 139 S. Ct. at 1727. Out of this concern, Nieves held that “the no-probablecause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Ibid. Because Murphy had been arrested for walking along a road while he was vocally complaining about police conduct, he invoked the jaywalking exception. But the district court dismissed Murphy's claims against Schmitt at the 12(b)(6) stage before permitting discovery (Exhibit C), and a 2-1 Eighth Circuit panel affirmed. Fo