Q: I am a journalist whose First and Fourth Amendment Rights were violated by police. The incident occurred while I was documenting but not speaking or interacting with anyone on the public sidewalk. The police department report has my location and description, and stated no crime suspected, just my presence and that I am photographing the police. A police officer walked behind me and without cause or warning reached around and stuck his hand inside my sweatshirt pocket causing me to flinch and turn. I stated I do not consent and the officer said “I don’t care.” He pushed me into a fence and with the help of another officer threw me to the ground causing injury. I was arrested and cited after about 30 minutes in handcuffs.
A: The First Amendment generally guards against “[o]fficial reprisal” for exercising one’s constitutional rights because retaliation for exercising one’s right to protected speech “threatens to inhibit [the] exercise of the protected right.” Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012). Federal law allows lawsuits against government actors, state or federal, who attempt to deter the exercise of constitutional rights.
In order to show a First Amendment violation under 42 U.S.C. § 1983, a plaintiff must present evidence demonstrating that the defendant, by its actions, “deterred or chilled” the plaintiff’s “political speech and such deterrence was a substantial motivating factor in [the defendant’s] conduct.” Id. To succeed in a retaliation action under 42 U.S.C. § 1983, a plaintiff must show “that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). Therefore, if a government employee, such as a police officer, acted in their official capacity to retaliate against an exercise of your free speech rights, you might have a viable retaliation claim against that person.
Whether or not you have a viable claim for retaliation here is a fact-specific inquiry, and as mentioned, we cannot provide you with specific legal advice through this hotline. Therefore, we recommend speaking to a local lawyer, perhaps one you find through the lawyer referral service linked above.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.