Last year, the U.S. Supreme Court issued its decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), in which it held that the existence of probable cause to arrest defeats a claim of retaliatory arrest. The only exception is where the plaintiff can prove that the police almost never arrest for the particular offense at issue (e.g., jay walking).

The limits of the Nieves decision were recently tested in Lund v. City of Rockford. In Lund, an on-line reporter was arrested for traffic offenses, including driving the wrong way on a one way street, after taking photos of an active police run prostitution sting operation. The state’s attorney ultimately dismissed the charges.

The reporter sued under 42 U.S.C. 1983 and claimed that he was arrested in retaliation for exercising his First Amendment rights as a reporter. The court granted summary judgment for the officers and the appellate court affirmed, relying on the Supreme Court’s decision in Nieves. The court held that “At the time of Lund’s arrest, the officers had probable cause to arrest him for, at a minimum, driving a motorized vehicle the wrong way on a one‐way street. Lund does not challenge this finding. Therefore his claim for retaliatory arrest fails.”

The court recognized that a narrow exception existed if Lund could ”present objective evidence that the Rockford police rarely, if ever, arrest citizens who drive vehicles or, perhaps more specifically, motorized bicycles the wrong way down one‐way streets.” But Lund failed to present such proof.