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Section 1983 First Amendment Retaliation by Litigation: SOL without PC

1/14/20

By: Brent Bean

“When angry count to ten before you speak.  If very angry, count to one hundred.”  – Thomas Jefferson
In a case of first impression in the Eleventh Circuit, the Court held that in a Section 1983 First Amendment retaliation claim premised on the filing of a civil lawsuit, probable cause will generally defeat the claim as a matter of law.  See DeMartini v. Town of Gulf Stream, Case No. 17-14177 (11^th Cir., Nov. 21, 2019).
A Section 1983 First Amendment retaliation claim requires the plaintiff to show (1) she engaged in protected speech, (2) the government’s retaliatory conduct adversely affected that speech and (3) a causal link exists between the conduct and the adverse effect.  As the Supreme Court observed, retaliatory animus is “easy to allege and hard to disprove.”  Nieves v. Bartlett, 587 U.S. ___, ___, 139 S.Ct. 1715, 1725, (2019).
There are two accepted methods of showing causation.  The first, typically used in the employment setting, is whether the retaliatory motivation was the but-for cause of the adverse action.  If not, or if the government would have taken the same action regardless of retaliatory animus, the defendant is not liable.  The second, typically used when the government uses the legal system to arrest or prosecute a plaintiff, is to ask whether there was probable cause for the arrest or prosecution.  If so, this will destroy the casual link.
In DeMartini, the plaintiff sued the Town of Gulf Stream, Florida (population 2000), for filing a civil RICO action against DeMartini and her business, CAFI.  The Town filed the lawsuit because CAFI had made thousands of public records requests designed to overwhelm the small town’s staff and lead to the recovery of attorney’s fees for non-compliance.
In the face of these requests, the Town received a sworn statement from an insider at CAFI attesting the requests were bogus and designed to lead to monetary recovery. The Town then engaged outside counsel to advise on merits of a lawsuit to stop the abuse.  The Town filed the RICO case, which was dismissed because the Town could show no predicate act.
DeMartini then sued the Town under Section 1983 for First Amendment retaliation, claiming the RICO lawsuit was unlawful retaliation designed to silence her right to seek redress, a First Amendment right.  She claimed public statements made at Town meetings confirmed the retaliatory animus for the lawsuit and the RICO lawsuit had no merit, as it was dismissed and affirmed on appeal.
The Eleventh Circuit considered whether a plaintiff asserting a claim for Section 1983 First Amendment retaliation based on the filing of a civil lawsuit is required to plead and prove an absence of probable cause for the civil lawsuit and whether the Town in fact lacked such probable cause.
The Court held that while the RICO lawsuit was ultimately dismissed, it was not without probable cause because the Town had sworn facts from an insider and had hired a lawyer who advised them on the law. So, the Court concluded the Town had a reasonable belief in the validity of the RICO claim.  The Court then held for retaliatory claims based on a civil lawsuit DeMartini had to show an absence of probable cause in the filing of the RICO lawsuit, which DeMartini could not do.
Governments seeking to take affirmative steps through civil litigation will be one-hundred times better served to first confirm their claims are supported by probable cause prior to filing a civil lawsuit.
If you have any questions or would like more information, please contact Brent Bean at bbean@fmglaw.com.