Denise DeMartini v. Town of Gulf Stream
Citation942 F.3d 1277
Date Filed2019-11-21
Docket17-14177
Cited103 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14177
________________________
D.C. Docket No. 9:16-cv-81371-DMM
DENISE DEMARTINI,
Plaintiff-Appellant,
versus
TOWN OF GULF STREAM,
WANTMAN GROUP, INC.,
ROBERT A. SWEETAPPLE,
Defendants-Appellees,
RICHMAN GREER, P.A.,
GERALD F. RICHMAN,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 21, 2019)
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Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.
HULL, Circuit Judge:
Plaintiff Denise DeMartini appeals the district courtâs grant of summary
judgment (1) to the defendant Town of Gulf Steam, Florida on her First
Amendment retaliation claim brought under 42 U.S.C. § 1983 and (2) to the
defendant Wantman Group, Inc., a government contractor, on her malicious
prosecution claim brought under Florida law.
To place this appeal in context, we begin with what happened in a prior
lawsuit and appeal involving the same parties here. See Town of Gulf Stream v.
OâBoyle, 654 F. Appâx 439 (11th Cir. 2016) (unpublished).
I. PRIOR LAWSUIT AND APPEAL
The Town of Gulf Stream (âthe Townâ) is a âtiny town of under 1,000
residents and just 17 full time employeesâ in Palm Beach County, Florida. Id. at
441. In their prior lawsuit, the Town and its contractor, the Wantman Group Inc. (âWantmanâ) sued Denise DeMartini (the plaintiff here), Martin OâBoyle, and others under the Racketeer Influenced and Corrupt Organizations Act (âRICOâ),18 U.S.C. §§ 1962
(c), 1964(c), for a fraud and extortion scheme.Id.
at 440â42.
OâBoyle resides in the Town. From 1984 until 1995, and then again from
2003 to 2015, DeMartini worked for OâBoyleâs real estate company, CRO Realty,
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Inc. OâBoyle was DeMartiniâs direct supervisor and described her as his âleft
handâ woman.
At the direction of OâBoyle, Citizens Awareness Foundation, Inc. (âCAFIâ)
was created as a not-for-profit corporation, whose stated purpose included testing
and enforcing municipalitiesâ compliance with Florida public records law.
OâBoyle was the sole funder of CAFI and he used it as a tool to file thousands of
public records requests to the Town under Floridaâs public records law. Plaintiff
DeMartini worked as CAFIâs Treasurer and later Director. OâBoyleâs CRO Realty
paid DeMartini for her work on behalf of CAFI.
In the prior lawsuit, the Town alleged that plaintiff DeMartini, OâBoyle, and
others âpummeled the town with nearly 2,000 public records requests, many of
them frivolous, with no intention of actually reviewing the results.â Id.The Town also alleged that, if the Town failed to timely respond then the OâBoyle Law Firm would sue the Town, allegedly âengag[ing] in a pattern of frivolous litigation activity.âId. at 441, 444
. The OâBoyle Law Firm was formed by OâBoyleâs son,
funded by OâBoyle, and was in the same building as OâBoyleâs real estate
company. Here is how OâBoyle and DeMartini orchestrated their scheme through
CAFI.1
1
In the prior lawsuit, this Court stated that â[w]e derive these facts from the complaintâs
well-pled allegations, which we accept as true for purposes of the motions to dismiss.â Gulf
Stream, 654 F. Appâx at 441 n.2.
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A. First Step: Public Records Requests
As its first step, CAFI would issue public records requests âon a grand
scaleâ to the Town, pursuant to Floridaâs Public Records Act, Fla. Stat. § 119.07.Id. at 444
. Specifically, § 119.07 provides that a custodian of a public record, such as the Town, (1) shall permit the record to be inspected and copied, at any reasonable time, under reasonable conditions, (2) must acknowledge requests to inspect or copy records promptly, and (3) must respond to such requests in good faith.Fla. Stat. § 119.07
(1)(a), (c).
As relevant here, CAFI sent the Town ânearly 2,000 public records
requests.â Gulf Stream, 654 F. Appâx at 441â42. These public records requests
were deliberately vague and ambiguous in order to induce a violation of § 119.07.
See id. Our prior decision listed examples of CAFIâs requests as production of:
(1) âAll email addresses created or received by the Town of Gulf
Streamâ;
(2) âAll phone numbers in the [T]ownâs recordsâ; and
(3) âAny and all records containing a social security number.â
Id.
One of CAFIâs requests went to Wantman, a contractor of the Town. Id. at
442. Floridaâs public records law applies also to private entities, such as
Wantman, that contract with government agencies. See Fla. Stat. § 119.0701.
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CAFI sent Wantman a public records request by e-mail, which directed that a
response be sent to this e-mail address: Vendor.Contract.Publishing@gmail.com.
Citizens Awareness Found., Inc. v. Wantman Grp., Inc., 195 So. 3d 396, 397â98 (Fla. Dist. Ct. App. 2016). CAFIâs request was sent to the e-mail address of Robin Petzold, the consultant on the government contract, with the additional language âDidTheyReadIt.comâ attached at the end of her e-mail address, rendering the e-mail address unrecognized by Wantmanâs computer network.Id.
at 397â98, 401.2 The subject line of the e-mail stated that it was a public records request, and it indicated that it was sent from âAn Onoma.âId. at 398
. The e-mailâs suspicious appearance led Petzold to believe that it was illegitimate and spam, and she did not respond to it.Id. at 401
.
B. Second Step: State Lawsuits Filed
The second step of CAFIâs strategy involved the OâBoyle Law Firmâs filing
many lawsuits. If the Town or Wantman did not respond promptly or adequately
to the public records requests, CAFI, through the OâBoyle Law Firm, would
threaten litigation, or actually file a lawsuit, against the Town or another entity.
CAFI, through the OâBoyle Law Firm, would demand unreasonable settlements,
which included excessive amounts of attorneyâs fees and costs. Gulf Stream, 654
2
Neither the government contract nor Wantmanâs website identifies Petzold as a
custodian of public records. Citizens Awareness, 195 So. 3d at 401.
5
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F. Appâx at 441. The demands were based on threats that CAFI would initiate
expensive and burdensome litigation or make pending litigation more expensive
and burdensome. Id. The end game of the scheme was not to have the Townâs
public records actually released, but to obtain attorneyâs fees for the OâBoyle Law
Firm. Id.
In that regard, Floridaâs Public Records Act, Fla. Stat. § 119.12, contains an attorneyâs fees provision that potentially applied when CAFI filed its lawsuits against the Town to enforce the production of public records. Section 119.12 provides that the state court shall award the reasonable costs of enforcement, including reasonable attorneyâs fees, against the custodian if the state court determines that: (a) the custodian unlawfully refused to permit a public record to be inspected or copied; and (b) the complainant provided written notice identifying the public record request to the custodian at least five business days before filing the civil action.Fla. Stat. § 119.12
(1)(a), (b). âUnlawful refusal under [§] 119.12 includes not only affirmative refusal to produce records, but also unjustified delay in producing them.â Yasir v. Forman,149 So. 3d 107, 108
(Fla. Dist. Ct. App.
2014) (quotation omitted).3 In short, if the Town or Wantman did not promptly
3
As discussed later, the complainant does not recover attorneyâs fees (and instead has to
pay attorneyâs fees) if the state court determines that the complainant requested to inspect or
copy a public record or participated in the civil action for an âimproper purpose.â Fla. Stat.
§ 119.12(3). And âimproper purposeâ means a request to inspect or copy a public record or to
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respond in five days, CAFI would file a lawsuit and demand attorneyâs fees. And
it was the policy and practice of the OâBoyle Law Firm to demand settlement of
cases with a provision for attorneyâs fees in excess of the fees actually incurred by
the OâBoyle Law Firm for the cases.
As an example of the abusive litigation, in May 2014, when Wantman failed
to respond to CAFIâs e-mail request for records within the required time frame,
CAFI filed suit after waiting merely 18 days and demanded several thousand
dollars to settle the claim.4 Citizens Awareness, 195 So. 3d at 401. After the suit was filed, Wantman voluntarily provided the requested records.Id. at 398
. Nevertheless, CAFI persisted with the lawsuit.Id. at 397
. The Florida state court concluded that Wantmanâs delay in providing the records was not so unjustifiable that it amounted to an unlawful refusal to provide the records to justify an award of attorneyâs fees.Id. at 397, 401
. Affirming the trial courtâs ruling, the Florida appellate court noted that Wantman believed the request was âillegitimateâ and stated that â[t]he public records law should not be applied in a way that encourages the manufacture of public records requests designed to obtain no response, for the purpose of generating attorneyâs fees.âId. at 401
. participate in the civil action primarily to cause a violation of this chapter or for a frivolous purpose.Id.
4
Gerald Richman and the law firm Richman Greer represented Wantman in that lawsuit.
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C. Joel Chandlerâs Role in CAFI
In January 2014, OâBoyle recruited Joel Chandler to be CAFIâs Executive
Director. While acting as CAFIâs Executive Director, Chandler became convinced
that CAFI was being used for improper purposes and that the organization was
engaged in potentially fraudulent and illegal activities. As a result, Chandler
resigned from CAFI in June 2014, approximately five months after he accepted the
position.
Within a few days after resigning from CAFI, Chandler contacted Robert
Sweetapple, who was the Townâs special counsel handling the public records
requests. Chandler told counsel Sweetapple that he believed CAFI, OâBoyle, and
the OâBoyle Law Firm were victimizing the Town with their public records
activities, and that those activities involved criminal, fraudulent, and unethical
conduct. Chandler also disclosed this information to the Townâs attorney, Joanne
OâConnor, as well as to the media.
In July 2014, Chandler met with Sweetapple, the Townâs special counsel,
and provided Sweetapple with documents and a sworn statement detailing CAFIâs
fraudulent conduct. Chandler also gave Sweetapple a sworn video statement
concerning his involvement with CAFI, OâBoyle, and the OâBoyle Law Firm.
Chandler advised Sweetapple about CAFIâs two-step âwindfall schemeâ of (1)
issuing deliberately vague and ambiguous public records requests to the Town and
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other entities and (2) then demanding excessive amounts of attorneyâs fees and
other costs to settle the dispute when the Town or other entities failed to respond to
the public records requests in a timely manner.
Chandler informed counsel Sweetapple that OâBoyle had orchestrated
hundreds of public records requests and directed the OâBoyle Law Firm to file
numerous lawsuits on behalf of CAFI, many times without Chandlerâs
authorization. Chandler reported that the OâBoyle Law Firm had settled cases on
behalf of CAFI without having fee arrangements or contingency agreements in
place, without closing statements, and without providing any accounting of the
settlements to CAFI.
Chandler also explained that he became uneasy with DeMartiniâs close
rapport with OâBoyle as well as her dual roles at the OâBoyle Law Firm and as a
director of CAFI. Chandlerâs grievances against DeMartini included the
following: (1) she chastised him for not supplying the OâBoyle Law Firm with
sufficient cases from CAFI; (2) she worked with another employee to reject
Chandlerâs pitch to refer CAFIâs litigation to law firms besides the OâBoyle Law
Firm; (3) CAFI adopted a policy that permitted DeMartiniâa non-lawyerâto
authorize public records requests and litigation; and (4) she demanded that
Chandler produce a âminimum of 25 lawsuitsâ per week for the OâBoyle Law
Firm.
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After obtaining Chandlerâs sworn statement, Sweetapple compared it to the
information he had already obtained through his own investigation and concluded
that Chandlerâs account of CAFIâs âwindfall schemeâ was credible.
D. RICO Civil Suit
With all of this information in hand, the Town decided to take action. In
October 2014, the Town held a regular meeting of its Commission to consider
specific ways to thwart OâBoyleâs âmalicious and frivolous lawsuits and public
records requests.â At the October 2014 meeting, the Townâs attorney, Joanne
OâConnor, advised the Commission that: (a) more than 1,500 public records
requests had been submitted to the Town since August 27, 2013; (b) the Town
believed that an overwhelming majority of those requests were submitted by
OâBoyle, one other prolific requester, or entities that they controlled; (c) these
requests resulted in 36 lawsuits against the Town; and (d) the requests had
âbarragedâ the small town staff and, since January 2014, the Town had spent
$370,000 in legal fees in defending those actions and responding to those requests.
At the October 2014 meeting, Scott Morgan, the Townâs Mayor, explained
that the Town was considering filing a RICO action and retaining attorney Gerald
Richman and his law firm, Richman Greer, as special counsel. At the meeting,
Richman introduced himself, explaining to the Town that he was a past president
of the Florida bar and an active trial lawyer with experience in RICO lawsuits.
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Richman encouraged the Town to file a RICO action against the OâBoyle Law
Firm, CAFI, and certain individuals. Richman stated that the âbest way to
counteractâ OâBoyleâs operation was to âfile a RICO action in federal court.â
Richman explained that the RICO action would seek injunctive relief and damages
against the OâBoyle Law Firm, CAFI, and the individuals involved.
Mayor Morgan asked special counsel Richman about damages, and Richman
responded that a successful RICO action would provide for attorneyâs fees and
damages related to the costs of defending the public records lawsuits. After
Richman discussed his fee arrangement, Thomas Stanley, a Town Commissioner,
asked Richman about other litigation costs. Richman explained that there would
be costs for depositions, interrogatories, and experts as the case progressed, but
initially the costs would be related to the complaint, service, and class certification.
Joan Orthwein, another Town Commissioner, asked special counsel Richman what
the overall cost of the RICO litigation would be, and Richman estimated that it
would cost between $20,000 and $25,000 in fees the first few months. Donna
White, also a Town Commissioner, asked Richman how long the RICO action
would last, but Richman did not speculate.
Mayor Morgan stated that the Town âha[d] suffered enoughâ by expending
funds, time, resources, and morale and was encountering âdifficulties [with]
retaining and hiring employees as a result of the scandalously malicious and
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frivolous lawsuits and public records requests filed by . . . OâBoyle under related
entities.â The Mayor explained that the Town could âeither take the approach of
defending these individual cases as they come in, and bleed to death by a thousand
cuts, or . . . take steps necessary to stop those cases by advancing this case.â The
Mayor commented that there was a âconspiracy . . . to advance actions that
essentially do nothing other than shake down municipal agencies and related
contractors for fundsâ and âall the talk of open public access . . . is nonsense.â He
explained that âby putting a stop to it with this RICO action, we then put a stop to
the individual lawsuits on the public records requests.â The Mayor was
âconfidentâ that the RICO lawsuit would stop the individual lawsuits and public
records requests.
Commissioner Orthwein responded, âI agree, because I donât see an end just
defending one by one. I think we have to take it all as a group and go forward
because just defending is not doing anything. . . . I think itâs very important that we
just donât bleed to death, we protect ourselves.â
After the discussion, the Commission voted to retain Richman and his law
firm, Richman Greer, as special counsel to represent the Town and to commence
the civil lawsuit. Richman also contacted Wantman about whether it would join
the RICO lawsuit. Richman had previously represented Wantman in other matters,
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including a prior public records lawsuit involving CAFI. Based on discussions
with Richman, Wantman decided to join the Town in the RICO civil suit.
On October 27, 2014, Sweetapple, as the Townâs special counsel, obtained
Chandlerâs affidavit, which outlined the existence of OâBoyleâs âwindfall schemeâ
and DeMartiniâs participation.
In February 2015, attorney Richman filed a civil complaint on behalf of the
Town and Wantman against OâBoyle, CAFI, DeMartini, and others, alleging
violations of RICO, 18 U.S.C. §§ 1962(c), 1964(c).5 In their complaint filed in federal district court, the Town and Wantman, as named plaintiffs on behalf of a putative class, alleged that the defendants (1) filed large numbers of frivolous public records requests, which were often intentionally inconspicuous, (2) then filed lawsuits when the requests were not addressed on time or otherwise, and (3) then extorted their victims by demanding settlements, including payment of their allegedly incurred attorneyâs fees and costs, or face protracted litigation and additional frivolous public records requests and lawsuits. The complaint alleged the defendantsâ pattern of frivolous public records requests and frivolous lawsuits was extortionate under the Hobbs Act,18 U.S.C. § 1951
. The complaint also
5
Before and after filing the RICO suit in federal court, the Town also filed counterclaims
naming DeMartini and others as third-party defendants in eight pending state court actions that
had been brought against the Town by OâBoyle and others alleging violations of Floridaâs public
records law.
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alleged that DeMartini was the self-appointed âkey employeeâ for all of OâBoyleâs
companies, and that she âdirect[ed] the flow of litigationâ and âcall[ed] the shots.â
Upon motion to dismiss by the defendants, the federal district court
dismissed the Town and Wantmanâs class action RICO complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court
concluded that the defendantsâ filing lawsuits, or even threatening to sue, did not
constitute a predicate act under RICO. In so ruling, the district court relied on
Eleventh Circuit precedent in Raney v. Allstate Ins. Co., 370 F.3d 1086, 1087â88 (11th Cir. 2004) (holding that the filing of a lawsuit did not state a claim for extortion as a predicate act under RICO), and United States v. Pendergraft,297 F.3d 1198, 1207
(11th Cir. 2002) (holding that neither the threat to litigate nor the
fabrication of evidence behind the threat of a lawsuit made the action âwrongfulâ
within the meaning of the Hobbs Act, and, thus, could not be a predicate act under
RICO).
On appeal, the Town and Wantman attempted to distinguish our above
precedent based on CAFIâs thousands of abusive public records requests, the large
volume of lawsuits actually filed or threatened to be filed, and the systematic use
of those lawsuits as part of the OâBoyle-led scheme to defraud with the intent to
deceive. Gulf Stream, 654 F. Appâx at 444. This Court assumed that the
defendants had âengaged in a pattern of frivolous litigation activity while abusing,
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on a grand scale, their statutory right to request public documents from the
government.â Id.Ultimately, however, this Court affirmed the district courtâs dismissal of the Town and Wantmanâs complaint.Id. at 445
. We stressed that the law encourages citizens to use the courts to redress wrongs and enforce rights, including to resolve public records disputes.Id.
at 443â44. Moreover, citizens have a constitutional right to petition the government for redress under the First Amendment.Id.
This Court concluded that, regardless of the scope and scale of the public records litigation, the courts are equipped with procedures to deal with parties who file frivolous litigation.Id.
Therefore, this Court determined that a threat to file litigation against the government does not trigger liability under the Hobbs Act.Id. at 443
. Nonetheless, this Court characterized the activities of CAFI, OâBoyle, and the OâBoyle Law Firm as âtroubling.âId. at 441
.
Meanwhile, Mayor Morgan sent a letter to town residents regarding the
Townâs operating budget, including a planned increase in the Townâs budget for
legal fees. After describing the status of the RICO civil lawsuit, Mayor Morgan
said, âI have stated numerous times that if the litigants will discontinue their
lawsuits, I will recommend discontinuing our RICO action.â And when the Town
lost on appeal, Mayor Morgan conceded during a public hearing held in July 2016
that the Townâs RICO suit was ânew to the law.â In filing the RICO suit, the
Town knew that it âwould either prevail or expose the case.â But âsomething had
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to be done to try to stop the public record lawsuits that at that time numbered 53
against the Town.â Mayor Morgan also reported that the Town had not had a
public records lawsuit since the RICO action was filed.
E. DeMartiniâs § 1983 Retaliation Case
Approximately two months after this Court affirmed the district courtâs
dismissal of the Town and Wantmanâs RICO civil action, DeMartini filed the
instant § 1983 action against them. In relevant part, DeMartiniâs amended
complaint alleged that the Town and Wantmanâs RICO lawsuit constituted
unlawful retaliation against her. Her amended complaint contained: (1) a First
Amendment retaliation claim under § 1983 against the Town; and (2) a malicious
prosecution claim under Florida law against Wantman.6
As to her § 1983 First Amendment retaliation claim, DeMartini alleged that
the speakers at the Townâs October 2014 Commission meeting made clear that the
Town was not concerned with the merits of its RICO lawsuit or its likelihood of
success. Rather, the Townâs sole motivation in voting for the RICO lawsuit was to
stop CAFIâs filing of public records lawsuits. DeMartini noted that, after this
Court affirmed the dismissal of the Townâs RICO complaint, Mayor Morgan
6
DeMartiniâs amended complaint also alleged Florida malicious prosecution claims
against Richman and his law firm Richman Greer and slander per se claims against Sweetapple
and Richman. The district court granted summary judgment for these defendants. On appeal,
DeMartini does not raise these claims against these defendants, and, therefore, we do not address
them.
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admitted at a July 2016 Commission meeting that the Townâs RICO lawsuit served
its purpose because new public records lawsuits had not been filed, which âwas
exactly what we tried to accomplish.â
DeMartini contended that she engaged in speech that was constitutionally
protected by associating with CAFI, which had filed the multiple public records
lawsuits against the Town. DeMartini alleged that: (1) the filing of these public
records lawsuits against the Town, at her direction, constituted constitutionally
protected activity; (2) the Town retaliated against her protected activity by filing
the RICO lawsuit; and (3) the Townâs retaliatory conduct adversely affected her
protected activity and caused her to incur substantial damages, primarily due to the
loss of her employment.
As to her Florida malicious prosecution claim against Wantman, DeMartini
alleged that Wantman disliked her petitioning the government by using Floridaâs
public records law and weaponized the RICO suit as a means to punish her for that
expression. She claimed that Wantman sued her without having any evidence that
she had any involvement or participation in the extortionate scheme alleged in the
RICO complaint.
The district court denied the defendantsâ motions to dismiss. Later, the
defendants moved for summary judgment on all claims and DeMartini filed a
cross-motion for partial summary judgment against Wantman. The district court
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granted the defendantsâ motions for summary judgment and denied DeMartiniâs
cross-motion against Wantman. The district court concluded the defendants had
probable cause to initiate a civil RICO lawsuit which precluded plaintiffâs § 1983
First Amendment retaliation claim and her Florida malicious prosecution claim.
DeMartini timely appealed. 7
II. SECTION 1983 FIRST AMENDMENT RETALIATION CLAIM
A. First Amendment
âA constitutional claim brought pursuant to § 1983 must begin with the
identification of a specific constitutional right that has allegedly been infringed.â
Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). Plaintiff DeMartini alleges
that the defendants violated her First Amendment rightsâto make public records
requests and to bring lawsuitsâby filing the RICO civil action against her in
retaliation for her exercising those First Amendment rights.
The First Amendment provides that âCongress shall make no
law . . . abridging the freedom of speech, or . . . the right . . . to petition the
government for a redress of grievances.â U.S. Const. Amend. I. The Amendment
We review a grant of summary judgment de novo and apply the same legal standards
7
that governed the district courtâs decision. Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1293(11th Cir. 2013). Summary judgment is appropriate only âif the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.â Fed. R. Civ. P. 56(a). Also, we may affirm for any reason supported by the record, even if not relied upon by the district court. United States v. Al-Arian,514 F.3d 1184, 1189
(11th Cir. 2008).
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protects ânot only the affirmative right to speak, but also the right to be free from
retaliation by a public official for the exercise of that right.â Suarez Corp. Indus. v.
McGraw, 202 F.3d 676, 685 (4th Cir. 2000). âThe First Amendment right to petition the government for a redress of grievances includes a right of access to the courts.â Bank of Jackson Cty. v. Cherry,980 F.2d 1362, 1370
(11th Cir. 1993); see Cal. Motor Transp. Co., v. Trucking Unlimited,404 U.S. 508, 510
,92 S. Ct. 609, 612
(1972) (stating â[t]he right of access to the courts is indeed but one aspect of the right of petitionâ). The right to petition the government for a redress of grievances is âone of the most precious of the liberties safeguarded by the Bill of Rights,â and is âhigh in the hierarchy of First Amendment values.â Lozman v. City of Riviera Beach, Fla.,585 U.S. __
, __,138 S. Ct. 1945
, 1954â55 (2018) (internal quotation marks omitted) (quoting BE & K Const. Co., v. NLRB,536 U.S. 516, 524
,122 S. Ct. 2390, 2395
(2002)); see also Connick v. Myers,461 U.S. 138, 145
,103 S. Ct. 1684, 1689
(1983). The right to petition the government for redress of grievances is such a fundamental right as to be âimplied by â[t]he very idea of a government, republican in form.ââ BE & K Const., 536 U.S. at 524â25,122 S. Ct. at 2396
(quoting United States v. Cruikshank,92 U.S. 542, 552
(1875)).
In short, a citizenâs public records requests and lawsuits against the government
can clearly constitute protected First Amendment activity.
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B. Elements of Retaliation Claim
To state a § 1983 First Amendment retaliation claim, a plaintiff generally
must show: (1) she engaged in constitutionally protected speech, such as her right
to petition the government for redress; (2) the defendantâs retaliatory conduct
adversely affected that protected speech and right to petition; and (3) a causal
connection exists between the defendantâs retaliatory conduct and the adverse
effect on the plaintiffâs speech and right to petition. Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir. 2005). 8
In § 1983 First Amendment retaliation cases, the Supreme Court has
recognized that retaliatory animus by a governmental actor is a subjective
condition that is âeasy to allege and hard to disprove.â See Nieves v. Bartlett, 587
U.S. __, __,139 S. Ct. 1715, 1725
(2019) (internal quotation marks omitted) (quoting Crawford-El v. Britton,523 U.S. 574, 585
,118 S. Ct. 1584, 1590
(1998)); see also Hartman v. Moore,547 U.S. 250, 257
,126 S. Ct. 1695, 1702
(2006) (The
defendant inspectors argue that âa plaintiff can afflict a public officer with
disruption and expense by alleging nothing more, in practical terms, than action
8
When reviewing an officialâs retaliatory conduct for adverse effect on protected speech,
we consider whether the Townâs alleged retaliatory conduct âwould likely deter a person of
ordinary firmness from the exercise of First Amendment rights.â Bailey v. Wheeler, 843 F.3d
473, 481(11th Cir. 2016). However, we have acknowledged that special concerns arise when an officialâs âown First Amendment rights are implicatedâ in the commission of an alleged constitutional tort. Dixon v. Burke Cty.,303 F.3d 1271, 1275
(11th Cir. 2002).
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with a retaliatory animus, a subjective condition too easy to claim and too hard to
defend against.â). For this reason, courts have identified two general approaches to
retaliation claims against governmental actors, with the particular approach chosen
dependent on the type of alleged retaliation at issue. One approach, typically used
when a governmental employee claims that he was fired because he engaged in
First Amendment activity, looks to whether the defendant governmental
employerâs retaliatory motivation was the but-for cause of the adverse employment
decision. If notâthat is, if the defendant would have taken the same action had
there not also been a retaliatory animus motivating that conductâthen the
defendant is not liable. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 285â87,97 S. Ct. 568
, 575â76 (1977); see Lozman, 585 U.S. at __,138 S. Ct. at 1955
.
The second approachâtaken when the governmental defendant has utilized
the legal system to arrest or prosecute the plaintiffâhas been to require the
plaintiff to plead and prove an absence of probable cause as to the challenged
retaliatory arrest or prosecution in order to establish the causation link between the
defendantâs retaliatory animus and the plaintiffâs injury. Nieves, 587 U.S. at __,
139 S. Ct. at 1726; Hartman, 547 U.S. at 260â61, 265â66,126 S. Ct. at 1704
,
1706â07.
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These four major Supreme Court precedentsâMt. Healthy, Hartman,
Lozman, and Nievesâexpand upon the causal connection requirement in First
Amendment retaliation cases and are necessary background to our ultimate
conclusion. We start with the First Amendment retaliation decisions in Mt.
Healthy and Hartman.
C. 1977 Mt. Healthy: âBut-Forâ Test When Retaliatory Employment
Actions are Alleged
Mt. Healthy involved a government employerâs discharge of a public
employee. Mt. Healthy, 429 U.S. at 276,97 S. Ct. at 570
. Specifically, in Mt. Healthy, a city board of education (the âschool boardâ) decided not to rehire an untenured school teacher after various incidents indicating unprofessional demeanor.Id.
at 281â83, 97 S. Ct. at 573â74. One incident was a telephone call the teacher made to a local radio station to report on a new school policy.Id. at 282
, 95 S. Ct. at 573. The plaintiff teacher sued the school board, claiming that the boardâs refusal to renew his employment contract violated his First Amendment rights. Id. at 276,97 S. Ct. at 570
. Because the school board did not suggest that the teacher violated any established policy in making the call, the Supreme Court accepted a finding by the district court that the call was protected speech under the First Amendment.Id. at 284
,97 S. Ct. at 574
.
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In Mt. Healthy, the Supreme Court went on to hold, however, that since the
other incidents, standing alone, would have justified the plaintiff teacherâs
dismissal, relief could not be granted to the teacher if the school board could show
that the discharge would have been ordered even without reference to the teacherâs
protected speech. Id.at 285â87, 97 S. Ct. at 575â76. In terms of precepts in the law of torts, the Supreme Court held that even if retaliation might have been a âsubstantial factorâ or a âmotivating factorâ for the boardâs decision not to rehire the plaintiff, still there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination. Seeid.
After a bench trial, the district court awarded reinstatement with backpay to
the plaintiff teacher. Id. at 276,97 S. Ct. at 570
. The Supreme Court vacated the district courtâs favorable judgment for the plaintiff teacher because, as to causation, the district court should have gone on to determine whether the school board had shown that âit would have reached the same decision as to [the plaintiffâs] reemployment even in the absence of the [plaintiffâs] protected [speech].âId.
at 285â87, 97 S. Ct. at 575â76. Although the plaintiff had shown that his conduct (the call) was protected speech and that his conduct was a substantial or motivating factor in the school boardâs decision not to rehire him, the school board was not liable if it showed it would have reached the same decision in the absence of the plaintiffâs protected speech. Seeid.
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D. 2006 Hartman: First AmendmentâRetaliatory Criminal Prosecution
Claims Require the Absence of Probable Cause
After adopting the âbut forâ test when a public employee alleges retaliation
by the governmental employer based on the employeeâs protected First
Amendment activity, the Supreme Court addressed the test that should apply when
a citizen alleges that he or she has been criminally prosecuted in retaliation for
First Amendment activity. In Hartman, the Supreme Court recognized the
importance that the existence of probable cause plays in assessing causation in a
retaliatory prosecution claim and held that a viable retaliatory prosecution claim
requires the plaintiff to plead and prove the absence of probable cause. Hartman,
547 U.S. at 252, 265â66,126 S. Ct. at 1699, 1707
. The Supreme Courtâs analysis
in reaching that holding is instructive.
The plaintiff in Hartman engaged in an extensive lobbying campaign
opposing a particular postal service policy. Id.at 252â53, 126 S. Ct. at 1699â 1700. The Postal Service criminally prosecuted the plaintiff for violating federal statutes in that lobbying.Id.
at 253â54,126 S. Ct. at 1700
. After being acquitted, the plaintiff filed a § 1983 suit against the prosecutor and five postal inspectors, alleging that they violated his First Amendment rights when they instigated his criminal prosecution in retaliation for his criticisms of the Postal Service. Id. at 254,126 S. Ct. at 1700
.
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In Hartman, the Supreme Court held that, to establish the causal connection
required for a § 1983 First Amendment retaliation claim predicated on a retaliatory
criminal prosecution, a plaintiff must plead and prove more than the subjective
retaliatory animus of a government official and a plaintiffâs subsequent injury; the
plaintiff must also plead and prove the absence of probable cause for the
underlying retaliatory criminal prosecution. Id. at 260â61, 265â66, 126 S. Ct. at
1704, 1706â07.9
In reaching this conclusion, the Supreme Court reasoned that when the
claimed retaliation for protected First Amendment conduct is a criminal charge, a
constitutional tort action for retaliation will differ in two ways from the standard
First Amendment retaliation claim, such as a public employeeâs claim that he was
fired for criticizing the government. Id. at 260,126 S. Ct. at 1704
. What is
different about a criminal prosecution case is that: (1) âthe requisite causation
between the defendantâs retaliatory animus and the plaintiffâs injury is usually
more complex than it is in other retaliation cases, and the need to show this more
complex connection supports a requirement that no probable cause be alleged and
9
Prior to Hartman, both this Court and the Fifth Circuit had already held that the presence
of probable cause defeats a § 1983 First Amendment claim for retaliatory criminal prosecution.
See Wood v. Kesler, 323 F.3d 872, 882â883 (11th Cir. 2003) (concluding a plaintiffâs § 1983 claim for retaliatory criminal prosecution in violation of the First Amendment is âdefeated by the existence of probable causeâ); Keenan v. Tejeda,290 F.3d 252, 260
(5th Cir. 2002) (noting that
âretaliatory criminal prosecutions in violation of the First Amendment are actionable only if a
plaintiff can also prove the common-law elements of malicious prosecution, including the
absence of probable cause to prosecuteâ).
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provenâ; and (2) âthere will always be a distinct body of highly valuable
circumstantial evidence available and apt to prove or disprove retaliatory
causation, namely evidence showing whether there was or was not probable cause
to bring the criminal charge.â Id. at 261,126 S. Ct. at 1704
.
As to causation, the Supreme Court in Hartman explained that in retaliatory
criminal prosecutions, the causal connection is more complex because it âis not
merely between the retaliatory animus of one person and that personâs own
injurious action, but between the retaliatory animus of one person [the postal
inspector] and the action of another [the prosecutor].â Id. at 262,126 S. Ct. at 1705
. The Supreme Court also emphasized that âto the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutorâs mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking.âId. at 263
,126 S. Ct. at 1705
. The Supreme Court concluded that the absence of probable cause was needed to âbridge the gap between the nonprosecuting government agentâs [the postal inspector] motive and the prosecutorâs action, and to address the presumption of prosecutorial regularity.âId. at 263
,126 S. Ct. at 1706
.10 Thus,
10
The Supreme Court contrasted the dual actors in retaliatory criminal prosecution cases
with âthe requisite causation in ordinary retaliation claims, where the government agent
allegedly harboring the animus is also the individual allegedly taking the adverse action.â
Hartman, 547 U.S. at 259,126 S. Ct. at 1703
.
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even when a government officerâs retaliatory animus is clear, it âdoes not
necessarily show that the [officer] induced the action of a prosecutor who would
not have pressed charges otherwise.â Id. at 263,126 S. Ct. at 1705
.
Ultimately, the Supreme Court in Hartman concluded: âBecause showing an
absence of probable cause will have high probative force, and can be made
mandatory with little or no added cost,11 it makes sense to require such a showing
as an element of a plaintiffâs case, and we hold that it must be pleaded and
proven.â Id.at 265â66,126 S. Ct. at 1707
. Under Hartman, if there is probable cause for the underlying criminal prosecution, then the § 1983 First Amendment retaliatory criminal prosecution case ends as a matter of law. See id. The Supreme Court, in effect, imposed an ââobjectiveâ fact requirementâ on the plaintiffâto plead and prove the absence of probable causeâin order to prove the chain of causation from animus to injury. See id. at 258, 265â66,126 S. Ct. at 1702, 1707
.
E. 2018 Lozman: Holding That, Given the Unique Facts of the Case, the
Existence of Probable Cause Did Not Bar Lozmanâs First Amendment
Retaliatory Arrest Claim
More recently, in Lozman, the Supreme Court examined whether the
existence of probable cause will also defeat a § 1983 First Amendment claim for
11
The Supreme Court found the plaintiffâs duty to plead and prove the absence of
probable cause would essentially be âcost freeâ because the issue of probable cause will be âan
evidentiary issue in practically all such cases.â Hartman, 547 U.S. at 265,126 S. Ct. at 1707
.
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retaliatory arrest.12 Lozman, 585 U.S. at __, __, 138 S. Ct. at 1951, 1955. Although granting certiorari on that broad question, ultimately the Supreme Court itself limited its Lozman decision to the particular facts in that case.Id.
at __,138 S. Ct. at 1955
.
The Court first reviewed its own prior decisions in both Mt. Healthy and
Hartman and its prior stated reasons for them. See id.at __, 138 S. Ct. at 1952â53. After doing so, the Court concluded that â[o]n facts like these, Mt. Healthy provides the correct standard for assessing a retaliatory arrestâ and plaintiff âLozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City.âId.
at __,138 S. Ct. at 1955
. The Supreme Court cautioned, however: âThe Court need not, and does not, address the elements required to prove a retaliatory arrest claim in other contexts.âId.
The Supreme Court added âwhether in a retaliatory arrest case the Hartman approach should apply, thus barring a suit where probable cause exists, or, on the other hand, the inquiry should be governed only by Mt. Healthy is a determination that must await a different case.âId.
at __,138 S. Ct. at 1954
. The Court explained the reason
12
Previously in 2012, the Supreme Court granted certiorari on the question âwhether a
First Amendment retaliatory arrest claim may lie despite the presence of probable cause to
support the arrest,â but the Supreme Court declined to address that question in that earlier case.
See Reichle v. Howards, 566 U.S. 658, 663,132 S. Ct. 2088, 2093
(2012).
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was that âLozmanâs claim is far afield from the typical retaliatory arrest claimâ and
âthe mine run of arrests.â Id.
Because the âuniqueâ facts in Lozman drove that decision, we detail them.
See id.In Lozman, the plaintiff Lozman had filed a previous civil lawsuit contending that the City violated the stateâs open-meetings laws.Id.
at __,138 S. Ct. at 1949
. In June 2006, the City Council held a meeting at which Councilmember Wade suggested the City use its resources to âintimidateâ Lozman, who had filed the open-meeting lawsuit.Id.
A different Councilmember asked whether there was âa consensus of what Ms. Wade [was] sayingâ and others responded in the affirmative.Id.
Lozman alleged this formed an official plan to retaliate against him.Id.
On the other hand, the City maintained that the only consensus reached during the meeting was to invest the money and resources necessary to prevail in the litigation against it.Id.
Five months later, in November 2006, plaintiff Lozman came to a City
council meeting and gave remarks about the recent arrest of a former county
official. Id.When Councilmember Wade directed Lozman to stop, he continued speaking, this time about the arrest of a former city official in West Palm Beach.Id.
Councilmember Wade directed a police officer to âcarry him outââi.e., arrest him.Id.
at __, 138 S. Ct. at 1949â50. Before the Supreme Court, there was no
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dispute that the officer had probable cause to arrest the plaintiff for interrupting the
meeting. Id.at __,138 S. Ct. at 1951
.
Nonetheless, plaintiff Lozman alleged that the high-level City policymakers
in advance of the meeting had devised a retaliatory plan to arrest him because of
his open-meetings lawsuit against the City and prior public criticism of public
officials. Id.Pursuant to that alleged official policy, when Lozman spoke up at the next council meeting, Councilmember Wade directed police officers to arrest him.Id.
at __, 138 S. Ct. at 1949â50. After a 19-day trial, the jury returned a verdict for the City on all claims.Id. at 1950
.
During the trial, the district court charged the jury that plaintiff Lozman
must âprove that the arresting officer was himself motivated by impermissible
animus against Lozmanâs protected speech and that the officer lacked probable
cause to make the arrest.â Id.The district court âallowed the jury to decide whether there was probable cause to arrest [Lozman] for the public-disturbance offense.âId.
On appeal, this Court affirmed the verdict for the City because the existence of probable cause defeated Lozmanâs First Amendment retaliatory arrest claim.Id.
We also assumed that the district court erred in instructing the jury that the officer, rather than the City, must have harbored retaliatory animus. However, we concluded that error was harmless given that the jury had found the officer had probable cause for the arrest.Id.
The Supreme Court granted certiorari on the
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question of âwhether the existence of probable cause defeats a First Amendment
claim for a retaliatory arrest.â Id. at __, 138 S. Ct. at 1950â51.
For purposes of its discussion, the Supreme Court assumed Lozmanâs âarrest
was taken pursuant to an official city policy,â but added âwhether there was such a
policy and what its content may have been are issues not decided here.â Id.at __,138 S. Ct. at 1951
. Even though there was probable cause for Lozmanâs arrest, the Court ultimately concluded that the âuniqueâ facts of the case warranted allowing Lozman to proceed on his claim that the City had engaged in an âofficialâ policy of retaliation against him based on his First Amendment activity.Id.
at __, 138 S. Ct.
at 1954â55.
Explaining its reasoning, the Court identified five considerations that
justified allowing Lozmanâs First Amendment retaliation claim to proceed even
though there was probable cause for his arrest. Id.at __,138 S. Ct. at 1949
, 1954â
55. Those five considerations were: (1) plaintiff Lozman had alleged âmore
governmental action than simply an [officerâs] arrestâ because he claimed that the
City âitself retaliated against him pursuant to an âofficial municipal policyâ of
intimidationâ; (2) the plaintiff had alleged that the Cityâs retaliation plan was
âpremeditatedâ and formed months earlier (before the arrest); (3) the plaintiff had
âobjective evidenceâ of a policy motivated by retaliation, as he had a transcript of a
closed-door meeting where a Councilmember stated that the City should use its
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resources to âintimidateâ Lozman and others who filed lawsuits against the City;
(4) there was less of a concern about the causation problem and opening the
floodgates of frivolous retaliation claims because the Cityâs official policy of
retaliation was formed months earlier, there was little relation between the
âprotected speech that prompted the retaliatory policy and the criminal offense
(public disturbance) for which the arrest was made,â and âit was unlikely that the
connection between the alleged animus and injury will be weakened by an
officialâs legitimate consideration of speechâ; and (5) the plaintiffâs speechâthe
right to petitionâwas âone of the most precious of the liberties safeguarded by the
Bill of Rightsâ and was âhigh in the hierarchy of First Amendment values.â Id.
Although holding that plaintiff Lozman could sue for retaliatory arrest â[o]n
facts like these,â the Supreme Court emphasized that its holding was limited to the
alleged facts of Lozmanâs case and cautioned that it was not deciding whether, as a
general matter, the causation standard in Mt. Healthy or the lack-of-probable-cause
element in Hartman applied to retaliatory arrest claims. Id.at __, 138 S. Ct. at 1954â55. The Supreme Court also left it to this Court on remand to decide whether Lozman âis ultimately entitled to relief or even a new trial.âId.
at __,138 S. Ct. at 1955
. Because the Supreme Court had only assumed that there was an
official retaliatory policy and that the arrest was taken pursuant to that official city
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policy, the Supreme Court stated that on remand, among other matters, this Court
may wish to consider:
(1) whether any reasonable juror could find that the City actually
formed a retaliatory policy to intimidate Lozman during its June 2006
closed-door session; (2) whether any reasonable juror could find that
the November 2006 arrest constituted an official act by the City; and
(3) whether, under Mt. Healthy, the City has proved that it would have
arrested Lozman regardless of any retaliatory animusâfor example, if
Lozmanâs conduct during prior city council meetings had also violated
valid rules as to proper subjects of discussion, thus explaining his arrest
here.
Id.
F. 2019 Nieves: First Amendment Retaliatory Arrest Claims Generally
Require the Absence of Probable Cause
Shortly after Lozman, the Supreme Court had an opportunity to decide the
question that it had left open in that case: which standard, the Mt. Healthy standard
or the Hartman standard, should govern a § 1983 First Amendment retaliatory
arrest case. In this case, Nieves, the Court opted for the Hartman test: the presence
of probable cause will typically invalidate a First Amendment retaliatory arrest
claim. Nieves, 587 U.S. at __, __, 139 S. Ct. at 1723â24, 1726. The Court
explained that because, generally speaking, âretaliatory arrest claims involve [the
same] causal complexities akin to thoseâ in Hartman, which concerned a First
Amendment claim based on a retaliatory criminal prosecution, likewise â[t]he
presence of probable cause should generally defeat a First Amendment retaliatory
arrest claim.â Id.
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In Nieves, plaintiff Bartlett was arrested by two police officers, Luis Nieves
and Bryce Weight, for disorderly conduct and resisting arrest during a rowdy
winter sports festival held in Alaska. Id. at __, 139 S. Ct. at 1720â21. According
to Officer Nieves, he was speaking with a group of festival attendees when a
seemingly intoxicated Bartlett started shouting at the attendees not to talk to the
police. Id. at __, 139 S. Ct. at 1720. When Officer Nieves approached him, Bartlett yelled at Officer Nieves to leave.Id.
Rather than escalate the situation, Officer Nieves left.Id.
Bartlett disputed that account, claiming that he was not drunk and did not yell at Officer Nieves.Id.
Officer Weight stated that, several minutes later, Bartlett approached him in
an aggressive manner while Officer Weight was questioning a minor about
underaged drinking, stood between Officer Weight and the minor, and yelled with
slurred speech that Officer Weight should not speak with the minor. Id.When Bartlett stepped toward him, Officer Weight pushed Bartlett back.Id.
Officer Nieves saw the confrontation and initiated Bartlettâs arrest.Id.
at __, 139 S. Ct. at 1720â21. When Bartlett was slow to comply, the officers forced him to the ground and threatened to tase him.Id.
at __,139 S. Ct. at 1721
. Bartlett denied being aggressive and claimed that he stood close to Officer Weight in order to speak over the music and was slow to comply because he did not want to aggravate a back injury.Id.
After being handcuffed, Bartlett claimed that Officer Nieves said: âBet
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you wish you would have talked to me now.â Id.(alteration accepted). The officers then took Bartlett to a holding tent and charged him with disorderly conduct and resisting arrest.Id.
After a few hours, Bartlett was released from custody, and the state later dismissed the criminal charges against him.Id.
Subsequently, in a § 1983 action, Plaintiff Bartlett sued the officers for
violation of his First Amendment rights by arresting him in retaliation for his
speechâhis refusal to speak with Officer Nieves earlier in the evening and his
intervention in Officer Weightâs discussion with the minor. Id. The officers stated
that they arrested Bartlett because he interfered with an investigation and initiated
a physical confrontation with Officer Weight. Id. The district court granted
summary judgment to the officers because (1) âthe officers had probable cause to
arrest Bartlett,â and (2) âthe existence of probable cause precluded Bartlettâs First
Amendment retaliatory arrest claim.â Id. The Ninth Circuit disagreed, holding
that Bartlett had presented enough evidence that his speech was a âbut-for causeâ
of the arrest. Bartlett v. Nieves, 712 F. Appâx 613, 616 (9th Cir. 2017)
(unpublished).
In Nieves, the Supreme Court reversed the Ninth Circuit and held â[b]ecause
there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a
matter of law.â Nieves, 587 U.S. at __, 139 S. Ct. at 1728. The Court
acknowledged that retaliatory arrests cases do not present a âpresumption of
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prosecutorial regularityâ or âmultiple government actors,â which are factors that
are found in retaliatory prosecution cases and support a probable cause standard.
Id.at __,139 S. Ct. at 1724
. Nonetheless, the Court concluded that, like in retaliatory prosecution cases, the causal inquiry in retaliatory arrests cases is complex because âprotected speech is often a âwholly legitimate considerationâ for officers when deciding whether to make an arrest.âId.
at __, 193 S. Ct. at 1723â 24. Thus, the Court concluded that â[t]he plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.âId.
In addition, the Supreme Court in Nieves reasoned that, ââ[l]ike retaliatory
prosecution cases, evidence of the presence or absence of probable cause for the
arrest will be available in virtually every retaliatory arrest case.ââ Id.at __,139 S. Ct. at 1724
(quoting Reichle,566 U.S. at 668
,132 S. Ct. at 2095
). âAnd because probable cause speaks to the objective reasonableness of an arrest, its absence willâas in retaliatory prosecution casesâgenerally provide weighty evidence that the officerâs animus caused the arrest, whereas the presence of probable cause will suggest the opposite.âId.
(internal citation omitted).
The Supreme Court therefore concluded that â[t]he presence of probable
cause should generally defeat a First Amendment retaliatory arrest claim.â Id.at __,139 S. Ct. at 1726
. On the other hand, the Supreme Court also instructed that if
the plaintiff demonstrates the absence of probable cause, âthe Mt. Healthy test
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governs: The plaintiff must show that the retaliation was a substantial or
motivating factor behind the arrest, and, if that showing is made, the defendant can
prevail only by showing that the arrest would have been initiated without respect to
retaliation.â Id.at __,139 S. Ct. at 1725
(internal citations, alterations, and
quotation marks omitted).
Examining specifically the arrest of the plaintiff Bartlett, the Supreme Court
in Nieves concluded that, â[b]ecause there was probable cause to arrest [plaintiff]
Bartlett, his retaliatory arrest claim fails as a matter of law.â Id.at __,139 S. Ct. at 1728
. In reaching this conclusion, the Supreme Court examined the two âcommon law torts that provide the closest analogy to retaliatory arrest claimsâ: false imprisonment and malicious prosecution.Id.
at __,139 S. Ct. at 1726
(internal quotation marks omitted). Although the parties disputed which tort was the better analog, the Supreme Court concluded that both common law torts suggested the same result, which is that a plaintiff must show the absence of probable cause.Id.
The Supreme Court explained that â[i]t has long been settled law that malicious prosecution requires proving the want of probable cause.âId.
(internal quotation
marks omitted). And for a false imprisonment claim, âthe presence of probable
cause was generally a complete defense for peace officers.â Id.13 Relying in part
13
âAt common law, peace officers were privileged to make warrantless arrests based on
probable cause of the commission of a felony or certain misdemeanors.â Nieves, 587 U.S. at __,
139 S. Ct. at 1726. âAlthough the exact scope of the privilege varied somewhat depending on
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on these two common law analogs, the Supreme Court held the defendant officers
were entitled to summary judgment on plaintiff Bartlettâs § 1983 First Amendment
claims for retaliatory arrest because there was probable cause to arrest him. Id. at
__, 139 S. Ct. at 1726â28.
One final observation about Nieves. Although probable cause defeated
plaintiff Bartlettâs retaliatory arrest claim, the Supreme Court issued a caveat,
albeit in dicta, about that holding. The Supreme Court explained that, although
probable cause generally defeats a retaliatory arrest claim, âa narrow qualification
is warranted for circumstances where officers have probable cause to make arrests,
but typically exercise their discretion not to do so.â Id. at __, 139 S. Ct. at 1727. 14 In those types of cases, âan unyielding requirement to show the absence of probable cause could pose a risk that some police officers may exploit the arrest power as a means of suppressing speech.âId.
(internal quotation marks omitted).
Therefore, in Nieves the Supreme Court carved out a narrow exception to
the jurisdiction, the consistent rule was that officers were not liable for arrests they were
privileged to make based on probable cause.â Id.at __,139 S. Ct. at 1727
.
14
The Supreme Court noted that given the present power of police officers to make
warrantless arrests for misdemeanors for even very minor offenses, such as jaywalking, the
existence of probable cause for an arrest on such an offense would do little to disprove that a
retaliatory motive prompted the arrest for an arrestee who had, for example, vocally complained
about police conduct. Nieves, 587 U.S. at __, 139 S. Ct. at 1727. In such a circumstance, the no-probable-cause pleading requirement would not apply to a plaintiff who showed that similarly offending individuals who had not engaged in protected speech had not been arrested by that officer for the same violative conduct.Id.
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âthe no-probable-cause requirement.â Id.The exception applies âwhen 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.âId.
The Supreme Court stated that the plaintiffâs showing of such objective evidence would address the causal concern that non-retaliatory reasons prompted the arrest and avoid a subjective inquiry into the officerâs individual statements and motivations.Id.
If the plaintiff makes this requisite âobjective evidenceâ showing
that others similarly situated were not arrested by the individual officer, the
plaintiffâs First Amendment retaliatory arrest claim may move forward âin the
same manner as claims where the plaintiff has met the threshold showing of the
absence of probable cause.â Id.15
15
Chief Justice Roberts wrote the opinion of the Nieves Court, joined in full by Justices
Breyer, Alito, Kagan, and Kavanaugh, and by Justice Thomas in all but the part regarding the
selective arrest exception. Justice Gorsuch concurred in part and dissented in part, concluding
that there is no basis in law to graft a no-probable-cause requirement onto a § 1983 First
Amendment retaliatory arrest claim. Nieves, 587 U.S. at __, 139 S. Ct. at 1730â31. In Justice
Gorsuchâs view, the absence of probable cause is not an absolute requirement for a First
Amendment retaliatory arrest claim and its presence is not an absolute defense. Id. at __, 139
S. Ct. at 1732.
Nevertheless, Justice Gorsuch suggested that probable cause could bear on a retaliatory
arrest claim in at least two ways: (1) to show causation; and (2) in light of separation of powers
and federalism concerns where state and federal executive officials, not judges, are vested with
the decision to bring criminal charges. Id.at __, 139 S. Ct. at 1732â34. As to causation, Justice Gorsuch noted the opinionâs exception for evidence of selective arrests and also the open question of whether direct evidence of discrimination, such as a prosecutorâs admission of discriminatory purpose, might be enough to allow a retaliatory arrest claim to proceed in cases where probable cause exists for the arrest.Id.
at __,139 S. Ct. at 1733
.
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To recap, the presence of probable cause will (1) defeat a § 1983 First
Amendment retaliation claim for an underlying retaliatory criminal prosecution,
Hartman, and also (2) will generally defeat a § 1983 First Amendment retaliation
claim for an underlying retaliatory arrest, Nieves, except (a) when the âuniqueâ
five factual circumstances in Lozman exist together, or (b) where the plaintiff
establishes retaliation animus and presents âobjective evidenceâ that he was
arrested for certain conduct when otherwise similarly situated individuals
(committing the same conduct) had not engaged in the same sort of protected
speech and had not been arrested, Nieves. While these Supreme Court decisions
provide significant guidance, the Supreme Court has not addressed a § 1983 First
Amendment claim predicated on a retaliatory civil lawsuit. Although there is scant
circuit precedent, we discuss those few decisions because they demonstrate how
circuit courts have assessed what a plaintiff must prove to establish the required
causal connection in § 1983 First Amendment retaliation cases when predicated on
civil lawsuits.
G. Other Circuit Precedent
We have located only three circuit decisions involving § 1983 First
Amendment retaliation claims predicated on a retaliatory civil lawsuit or
counterclaim. See Greenwich Citizens Comm., Inc. v. Ctys. of Warren & Wash.
Indus. Dev. Agency, 77 F.3d 26 (2d Cir. 1996) (counterclaim); Harrison v.
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Springdale Water & Sewer Commân, 780 F.2d 1422(8th Cir. 1986) (counterclaim); Bell v. Sch. Bd. of Norfolk,734 F.2d 155
(4th Cir. 1984) (civil
declaratory judgment action). Although Mt. Healthy was decided in 1977 well
before these decisions, two of them, Harrison and Bell, do not cite Mt. Healthy.
And, of course, all three cases were decided long before the probable cause
decisions in Hartman, Lozman, and Nieves. Nonetheless, each of the three circuits
gave some consideration to whether the underlying civil action was frivolous in
deciding whether the § 1983 plaintiff had shown the requisite causation between
the defendantâs retaliatory animus and the plaintiffâs injury.
For example, in Greenwich, the plaintiffs filed a state court lawsuit against a
county government and other defendants in an effort to stop a waste incinerator
project. Greenwich, 77 F.3d at 28. The plaintiffsâ lawsuit caused the market for
the municipal bonds (to fund the project) to deteriorate. Id. The defendants filed
various state tort counterclaims against the plaintiffs. Id. at 29. The Greenwich
plaintiffs then filed a separate § 1983 First Amendment retaliation claim, alleging
the defendantsâ state court counterclaims were filed in retaliation to the plaintiffsâ
exercise of their protected First Amendment rights. Id. The jury agreed, but the
Second Circuit remanded for a new trial.
As to causation, the Second Circuit concluded that the § 1983 plaintiffs had
shown that the defendants âwould not have filed their state court counterclaims
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âbut forâ the Greenwich plaintiffsâ filing of their state court lawsuit.â Id. at 31
(applying the Mt. Healthy causation test). However, the Second Circuit held that
the § 1983 plaintiffs were also ârequired to persuade the jury that the [defendantsâ]
counterclaims were filed, not as a legitimate response to litigation, but as a form of
retaliation, with the purpose of deterring the [plaintiffsâ] exercise of First
Amendment freedoms.â Id. (emphasis added). The Second Circuit posited that
one way the plaintiffs could prove that the defendants acted with a retaliatory
purpose was to show that the defendantsâ state court counterclaims were
âfrivolous.â Id. at 31 n.5. The Second Circuit determined that the district court
erred by omitting from the jury charge âthe element of retaliatory intent in
describing what the Greenwich plaintiffs had to prove. Id. at 33 16; see also
Gorman-Bakos v. Cornell Coop Extension of Schenectady Cty., 252 F.3d 545, 556
(2d Cir. 2001).
Similarly, in evaluating the plaintiffsâ First Amendment retaliation claim in
Harrison, the Eighth Circuit considered whether the defendantâs counterclaim was
frivolous. Harrison, 780 F.2d at 1424. The plaintiffs had sued the defendant
Sewer Commission in state court for injunctive relief and damages from sewage
16
The Second Circuit noted that the defendants âdo not advance, nor do we consider, the
argument that they may not be held liable for filing their counterclaims under the theory that
such liability would impair their own First Amendment rights to conduct legitimate litigation.â
Greenwich, 77 F.3d at 33 n.6.
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discharge in the creek near their blueberry farm. Id. The Commission filed a
counterclaim to condemn and take the plaintiffsâ property. Id. The plaintiffs then
filed a separate § 1983 action in federal court, contending that the Commissionâs
condemnation counterclaim was filed in retaliation for the plaintiffsâ bringing their
state court lawsuit against the Commission. Id. at 1425, 1428. 17
Reversing the district courtâs dismissal, the Eighth Circuit held that the
plaintiffs had stated a § 1983 cause of action for infringement of their First
Amendment âright of access to the courts.â Id. at 1426â28. Pivotal to the Eighth
Circuitâs ruling was the fact that, notwithstanding its filing of a state court
condemnation counterclaim to take plaintiffsâ property, the Commission in fact had
no plan to use the plaintiffsâ property, but instead the counterclaim âwas filed as a
tactical moveâ to pressure the plaintiffs into settling their civil damages lawsuit
against the Commission. Id. at 1428. To the Eighth Circuit, these facts rendered
the Commissionâs counterclaim âfrivolous.â Id. at 1428.
In Bell, the Fourth Circuit similarly considered whether the defendant school
boardâs prior civil action was a legitimate or âgenuineâ strategy in assessing a
plaintiffâs subsequent § 1983 First Amendment retaliation claim. Bell, 734 F.2d at
156, 157 n.6. In Bell, at a public meeting, the plaintiff opposed the school boardâs
17
The Sewer Commission was a public agency created by the City of Springdale,
Arkansas. Harrison, 780 F.2d at 1424.
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new neighborhood plan. Id. The school board filed a declaratory judgment suit
naming the plaintiff as a representative of the class opposed to the new plan. Id.
The plaintiff objected to being a class representative and requested dismissal. Id.
The school board agreed to the dismissal. Id. at 156â57. The plaintiff then filed a
§ 1983 action alleging the school boardâs suit was brought to deter her from
speaking out against the school plan. Id. at 157.
Affirming the district courtâs dismissal of plaintiffâs § 1983 action, the
Fourth Circuit pointed out that (1) when the plaintiff advised she did not want to be
a class representative, the board dismissed her, and (2) the boardâs declaratory
judgment lawsuit âappears to have been part of a genuine strategy aimed at
acquiring a court determination of the validity of the plan.â Id. at 157 & n.6.18
18
The Town also cites the Fifth Circuitâs decision in Johnson v. La. Depât of Agric., 18
F.3d 318, 309(5th Cir. 1994), but the underlying prosecution in that First Amendment retaliation case reads more like a criminal prosecution, than a civil action. In that case, the plaintiff Johnson operated a crop-dusting business, and the Louisiana Department of Agriculture (âDepartmentâ) charged the plaintiff with violations of pesticide laws, imposed penalties and revoked the plaintiffâs license to apply pesticides.Id.
at 319â20. The plaintiff appealed to a Louisiana state court where the liability findings were generally affirmed although the sanctions were often reduced.Id. at 320
. Later, plaintiff Johnson filed a § 1983 First Amendment retaliation claim,
alleging the Department and others had prosecuted him in retaliation for his protected speech and
because he refused to make a large enough contribution to the Agriculture commissionerâs
reelection campaign.
On appeal, the Fifth Circuit analyzed plaintiff Johnsonâs § 1983 First Amendment claim
predicated on retaliatory administrative proceedings as one for malicious prosecution in violation
of his First Amendment rights. Id. In affirming the dismissal of plaintiffâs § 1983 First
Amendment retaliation claim, the Fifth Circuit said that, âif the First Amendment protects
against malicious prosecution,â plaintiff Johnson âmust not only allege a deprivation of a
constitutional right but must also establish all the elements of the common law tort actionâ of
malicious prosecution. Id. The Fifth Circuit affirmed because plaintiff Johnson had âfailed to
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In sum, even before the probable cause decisions in Hartman and Nieves,
other circuits were considering whether the underlying civil lawsuit was frivolous
before allowing a plaintiff to move forward on a § 1983 First Amendment
retaliation claim predicated on that civil lawsuit. With this extensive background,
we return to this case.
III. ISSUES ON APPEAL
The parties primarily focus on two issues: (1) whether plaintiff DeMartini in
her § 1983 First Amendment retaliation claim predicated on an underlying civil
lawsuit is required to plead and prove the absence of probable cause for that civil
lawsuit; and (2) if so, whether the Town lacked probable cause to initiate its civil
RICO lawsuit against DeMartini.
DeMartini argues that her § 1983 First Amendment retaliation claim is
governed by Lozman, which held that plaintiff Lozman could bring a § 1983 First
Amendment retaliation claim for retaliatory arrest even though there was probable
cause for his arrest. DeMartini contends that the circumstances of her case are like
those in Lozman because the record amply demonstrates the Town adopted an
official municipal policy of retaliation against her. DeMartini argues Hartmanâs
and Nievesâs probable cause requirement does not apply because the Town
satisfy the common law requirement that âthe underlying criminal proceeding . . . terminate in
the plaintiffâs favor.ââ Id. at 320â21.
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unanimously voted to bring its RICO civil action âfor the sole purpose of stopping
the protected activityâ of filing public records requests and lawsuits.
Alternatively, even if Hartman and Nievesâs probable cause requirement
applies, DeMartini argues that the Town lacked probable cause for its RICO
lawsuit. DeMartini contends that the Townâs RICO action was âbaselessâ and
frivolous given Eleventh Circuit precedent that a threat to file a civil lawsuit is not
a valid RICO predicate.
Not surprisingly, the Town responds that the âcausation landscapeâ here is
more similar to that in Hartman because attorneys here functioned in the same role
as that of a prosecutor in Hartman. Just as the dual actors in Hartman, the
individuals filing the civil lawsuit (outside counsel) were not the same individuals
allegedly harboring the animus (the Townâs Commissioners). The Town also
stresses, however, that the Supreme Court limited Lozman to its unique factors,
several of which are missing here. And like the Supreme Court did in Nieves, this
Court should look to the closest common law analog to DeMartiniâs First
Amendment retaliation claim based on a civil lawsuit, which is a claim for
âwrongful institution of legal processâ and also requires proving the want of
probable cause.
If DeMartini is correct that the Town lacked probable cause to file its civil
RICO lawsuit, we would not have to address whether the presence of probable
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cause defeats DeMartiniâs § 1983 First Amendment retaliation claim as a matter of
law. Thus, we first examine whether the Town had probable cause to file its civil
RICO lawsuit.
IV. TOWNâS PROBABLE CAUSE FOR ITS CIVIL LAWSUIT
âProbable cause to institute civil proceedings requires no more than a
âreasonabl[e] belie[f] that there is a chance that [a] claim may be held valid upon
adjudication.ââ Profâl Real Estate Invârs, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49, 62â63,113 S. Ct. 1920, 1929
(1993) (alternations in original) (quoting Restatement (Second) of Torts § 675, cmt. E (Am. Law Inst. 1977)). Therefore, âit is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding, but rather that he had a reasonable belief, based on the facts and circumstances known to him, in the validity of the claim.â Mee Indus. v. Dow Chem. Co.,608 F.3d 1202, 1211
(11th Cir. 2010) (quotation marks omitted). This standard, which requires less certainty than probable cause as defined in the criminal context, is ânot a high bar to meet.âId. at 1218
.
To establish a RICO violation under §§ 1962(c) and 1964(c), the Town had
to prove that DeMartini engaged in âan enterprise . . . through a pattern . . . of
racketeering activity that included at least two racketeering actsâ that caused injury
to the Townâs âbusiness or property.â See Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1348 (11th Cir. 2016) (quotations omitted). For RICO purposes, a
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âracketeering actâ must constitute a violation of one of the laws described in 18
U.S.C. § 1961(1). Raney,370 F.3d at 1087
. Those laws include extortion, mail fraud, and wire fraud, among other crimes.18 U.S.C. § 1961
(1). In support of its RICO action, the Town alleged that the RICO co-conspirators had engaged in (1) extortion as defined by the Hobbs Act,18 U.S.C. § 1951
, and (2) mail and wire fraud in violation of18 U.S.C. §§ 1341
, 1343.
Importantly, prior to filing its RICO action, the Town obtained substantial
information that supported a reasonable belief that CAFI, OâBoyle, the OâBoyle
Law Firm, and other individualsâincluding DeMartiniâ had committed fraud
through their participation in an extortionate scheme involving fraudulent public
records requests, false settlement demands, and subsequent multiple lawsuits
designed to obtain attorneyâs fees as opposed to the requested records. See Mee,
608 F.3d at 1211. Specifically, upon resigning as Executive Director of CAFI,
Chandler provided sworn testimony to Sweetapple, the Townâs special counsel,
indicating that CAFI, OâBoyle, the OâBoyle Law Firm, and DeMartini were
engaged in a fraudulent and unlawful effort to extort money from the Town via a
public records litigation âwindfall scheme.â As described by Chandler, the scheme
involved two steps: (1) pummeling the Town with voluminous and intentionally
vague public records requests that were designed to elicit either no response, an
incomplete response, or an untimely response, and then (2) demanding that the
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Town pay an excessive settlement to avoid litigation under Floridaâs public records
law, including demanding attorneyâs fees in excess of the fees and costs the
OâBoyle Law Firm actually incurred to settle the case.
Furthermore, Chandler specifically implicated DeMartini in the scheme,
describing to special counsel Sweetapple her key role within CAFI and the
OâBoyle Law Firm, her importance to OâBoyleâs operations, and her direct
participation in the extortionate activities.
DeMartini does not dispute that employees of CAFI and the OâBoyle Law
Firm dumped thousands of public records requests on the Townâcosting the
Town $370,000 in attorneyâs fees. For a Town of about 1,000 people, those
attorneyâs fees equaled about $370 per resident. Nor does DeMartini contest that
the Town had hired an attorneyâGerald Richmanâwho investigated the OâBoyle-
led scheme for over a year. Nor does DeMartini contest that the Townâs
investigation kicked into high gear when Chandler left his post as CAFIâs
Executive Director and reported his concerns about CAFIâs fraudulent scheme to
Town officials in extensive written and videotaped statements. And DeMartini
does not dispute that Chandler gave detailed insight into the scheme, including that
CAFI was deliberately making vague public records requests so that the OâBoyle
Law Firm could garner thousands of dollars in attorneyâs fees.
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Likewise, DeMartini fails to contest certain details concerning what the
Town knew about her personal involvement in CAFIâs scheme. For example,
DeMartini does not contest that she participated in the OâBoyle-led scheme, with
OâBoyle describing her as his âleft hand.â Indeed, Chandler provided the Town
with emails showing DeMartiniâs alleged role at CAFI and the OâBoyle Law Firm.
Nor does DeMartini deny that Chandler informed the Townâs officials that
DeMartini was pressuring him to come up with 25 lawsuits per week and chastised
him for his proposal to refer CAFIâs work to other law firms besides the OâBoyle
Law Firm. Nor does DeMartini deny that Chandler told the Town that he was
troubled by CAFIâs policy that permitted DeMartiniâa non-lawyerâto authorize
public record requests and litigation.
Instead, DeMartini makes two primary objections to the district courtâs
finding that the Town had probable cause to file its civil RICO lawsuit: (1) the
Town should not have relied on Chandlerâs sworn testimony because he might not
be viewed as a credible witness in the case; and (2) settled precedent in the
Eleventh Circuit clearly established that frivolous litigation can never serve as a
Hobbs Act violation, even if the plaintiff was using the litigation for extortionate
purposes. Neither contention has merit.
As to the first objection, while it is true that the Town might rightly have
considered how a jury might view Chandlerâs testimony in a RICO lawsuitâgiven
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that he was previously a vocal supporter of public records requests and had sued
municipalities for public records requests in his past role as a director at CAFIâ
the Town and its outside counsel never questioned Chandlerâs veracity or
reliability about the inner workings of CAFI. And it was this inside-knowledge
that gave great heft to the Townâs allegations in its RICO complaint. Indeed, given
that Chandler had worked as CAFIâs Executive Director, he had first-hand
knowledge of OâBoyle and DeMartiniâs scheme, and his affidavits corroborated
much of what the Town had already suspected after being the target of over a
thousand public records requests from CAFI. Accordingly, because Chandler had
a strong basis for his personal knowledge, the Town reasonably relied on his sworn
statements to form their reasonable belief that the whole scheme was designed
solely to extort monies from the public coffers.
As to DeMartiniâs second objection, she argues that this Courtâs precedent in
Pendergraft and Raney precluded the Townâs theory that a RICO action could be
based on DeMartiniâs litigation activity, and thus eliminated any probable cause it
may have had for asserting a RICO claim. We reject DeMartiniâs argument.
Pendergraft and Raney made it unlikely, but not impossible, for the Town to
succeed. The Town had a reasonable belief that there was a legitimate and
material distinction between their RICO claim and the ones that came before it in
that OâBoyle, DeMartini, and others had abused their statutory right to request
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public documents from the government âon a grand scale.â Gulf Stream, 654 F.
Appâx at 444. Given the huge number of requests and the obvious pattern that they were being filed to strip the Town of money while allowing the OâBoyle Law Firm to profit handsomely, it was not unreasonable for the Town to believe in good faith that this Court might carve out an exception to the general rule. See Profâl Real Estate Invârs.,508 U.S. at 65
, 113 S. Ct. at 1930â31 (âEven though it did not survive PREâs motion for summary judgment, Columbiaâs copyright action was arguably âwarranted by existing lawâ or at the very least was based on an objectively âgood faith argument for the extension, modification, or reversal of existing law.ââ (quoting Federal Rule of Civil Procedure 11)). In fact, the Town cited to out-of-circuit caselaw in which actual or threatened litigation was acknowledged to be a component of the activities giving rise to a RICO claim. Moreover, distinguishing existing precedent is the essence of good lawyering. See Armco, Inc. v. S. Rock, Inc.,778 F.2d 1134, 1138
(5th Cir. 1985) (finding that the
defendant had probable cause to file a civil lawsuit because, even though it
suspected âit would eventually lose,â the defendant plausibly distinguished
existing case law). The Town had a mountain of fraudulent and extortionate
conduct to present in the hopes of creating an exception to the general rule in
Pendergraft and Raney. Consequently, there is no merit to DeMartiniâs contention
that the Town lacked a reasonable belief that it might prevail in the RICO lawsuit.
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Simply put, the Town did not need to be certain of success on its civil RICO
claim in order to have probable cause to assert it. See Mee, 608 F.3d at 1211. Our inquiry is whether all of the facts and circumstances available to the Townâ including Chandlerâs extensive sworn testimonyâgave the Town a reasonable belief that it had a tenable RICO claim against DeMartini.Id.
We conclude the
Town had such a reasonable belief.
Although the district court and this Court ultimately rejected the Townâs
proffered distinction, its argument was not unreasonable, as probable cause may be
based on âan objectively âgood faith argument for the extension, modification, or
reversal of existing law.ââ See Profâl Real Estate Invârs, 508 U.S. at 65, 113 S. Ct.
at 1930â31. Consequently, the Town had a reasonable basis to believe its claim
was valid.19
Indeed, while this Court affirmed on appeal the district courtâs dismissal of
the Town and Wantmanâs civil RICO complaint, we denied the defendantsâ motion
for sanctions under Federal Rule of Appellate Procedure 38. Gulf Stream, 654 F.
Appâx at 445 n.7. Rule 38 provides that â[i]f a court of appeals determines that an
appeal is frivolous, it may . . . award just damages and single or double costs to the
19
We note that our prior panel decision now having decided that a civil RICO claim does
not lie here based on the facts of this case, the Town would presumably lack probable cause
should it seek again to file another civil RICO lawsuit against persons filing public records
requests and related lawsuits, even if the requests were filed in bad faith with the motivation
behind the claims being to extort money.
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appellee.â Fed. R. App. P. 38. In so ruling, we rejected defendantsâ argument that
the appeal was frivolous in light of Pendergraft and Raney. Gulf Stream, 654 F.
Appâx at 445 n.7. For all of these reasons, we conclude that the Town had
probable cause to file the civil RICO lawsuit.
V. WHETHER PROBABLE CAUSE DEFEATS DEMARTINIâS
RETALIATION CLAIM
Because the Town had probable cause to file its civil RICO lawsuit, we must
answer the final question: whether the existence of probable cause for a civil
lawsuit defeats a § 1983 First Amendment retaliation claim predicated on that
underlying civil lawsuit.
Based on the factors discussed in the Supreme Courtâs Hartman and Nieves
decisions, we conclude that, as with § 1983 First Amendment retaliation claims
arising in the criminal prosecution and arrest context, the presence of probable
cause will generally defeat a § 1983 First Amendment retaliation claim based on a
civil lawsuit as a matter of law. See Hartman, 547 U.S. at 260â61, 265â66, 126 S.
Ct. at 1704, 1706â07; Nieves, 587 U.S. at __,139 S. Ct. at 1726
. This principle
will particularly be apt when the alleged retaliatory civil ligation by the
government is itself taken as a reasonable response to the plaintiffâs own litigation,
or threat of litigation, against the government. Just as a citizen may have the right
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to sue the government, the government likewise has the right, and duty, to engage
in legitimate responsive litigation to defend itself against such challenges.
In a First Amendment claim predicated on a retaliatory civil lawsuit by the
government, the causation landscape is akin to that in Hartman because an attorney
(whether in-house or outside counsel) has filed the underlying civil lawsuit.
Notably, before taking action here, the Town engaged attorneys to investigate
CAFI, OâBoyle, and DeMartiniâs public records scheme. The involvement of
counsel widens the causation gap between any alleged retaliatory animus by the
Town and DeMartiniâs injury. Counselâs pivotal role in advising the Town that it
had a good faith basis to sue supports a requirement that DeMartini show the
absence of probable cause for the Townâs underlying lawsuit in order to establish
that the Townâs alleged animus caused DeMartiniâs injury. Like the prosecutor in
Hartman who filed the criminal action, the individuals recommending and filing
the civil lawsuit here (counsel) were not the same individuals who allegedly
harbored the retaliatory animus (the Townâs Commissioners).
In fact, two separate outside attorneys, Robert Sweetapple and Gerald
Richman, conducted investigations, evaluated the facts, and only then
independently recommended the filing of the civil RICO lawsuit. Like the
prosecutor in Hartman, Sweetapple and Richman were obligated to exercise their
own individual judgment and were bound by the Florida Rules of Professional
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Conduct. Specifically, they were each (1) required to âexercise independent
professional judgment and render candid adviceâ to the Town, (2) limited to the
filing of a claim having âa basis in law and fact . . . that is not frivolous,â and
(3) prohibited from âus[ing] the lawâs procedures . . . to harass and intimidate
others.â See R. Reg. Fla. Bar, 4-2.1, 4-3.1, Preamble.
Counselâs investigation, legal recommendation, and filing of the RICO
lawsuit widen the causal gap between the Townâs alleged animus and DeMartiniâs
injury. At bottom, as in Hartman, difficulty in proving the more complex chain of
causation here supports a conclusion that a lack of probable cause is a necessary
element in DeMartiniâs § 1983 First Amendment retaliation claim. As in
retaliatory criminal prosecution cases, the absence of probable cause is necessary
to bridge the gap between the defendantâs alleged animus and plaintiffâs injury.
See Hartman, 547 U.S. at 259,126 S. Ct. at 1703
(â[T]he need to prove a chain of
causation from animus to injury, with details specific to retaliatory-prosecutions
cases, . . . provides the strongest justification for the no-probable-cause
requirement.â). And as in Hartman, the absence of probable cause will have high
probative force and adds little to no cost, as the facts surrounding the Townâs prior
civil RICO lawsuit are already known by DeMartini.
In addition, in § 1983 First Amendment cases predicated on a retaliatory
civil lawsuit, the fact that probable cause existed to bring the underlying civil
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lawsuit shows that the defendant had a legitimate interest in considering the
plaintiffâs speech in the first place. For example, here, the protected speech that
the Town allegedly retaliated against hereâthe nearly 2,000 abusive public
records requests and 36 lawsuitsâwas the same conduct (or protected speech) for
which the Town had its own legitimate, objective reasons and motivation for
challenging by filing its civil RICO lawsuit. Unlike in other retaliation cases, in
addition to having legal probable cause for its civil RICO lawsuit, the Town had a
legitimate, objective factual reason and motivation for considering CAFI and
DeMartiniâs public records requests and lawsuits in deciding to file the civil RICO
lawsuit. The Townâs action was made in response to what it reasonably believed
were the abusive intent and practices underlying CAFI and DeMartiniâs harassing
public records requests and related lawsuits. While public records requests and
lawsuits typically constitute protected speech under the First Amendment, here the
Town had a legitimate interest and motivation in protecting itself, its coffers, and
its taxpaying citizensâindependent of any motivation to retaliateâby litigation
against CAFI and DeMartini.
To that end, it is clear that: (1) CAFI had filed nearly 2,000 public records
requests and 36 lawsuits; (2) its requests were not designed to actually obtain the
records but to enable CAFI to obtain money through settlements and excessive
attorneyâs fees; and (3) the Town had spent $370,000 in attorneyâs fees in
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responding to CAFIâs requests and lawsuits, which were bleeding the Townâs
coffers dry, one abusive lawsuit at a time. Nor is this a case where the government
was attempting to thwart a citizen from using public records laws to prevent the
citizen from validly obtaining public information. Neither CAFI nor DeMartini
have pointed to any public information that the Town ever withheld or that they
were unable to obtain. Rather, given CAFI and DeMartiniâs sustained pattern of
abusive requests and lawsuits, the Townâs elected officials had a legitimate,
objective reason to take legal action in response to CAFIâs conductâconduct that
it reasonably believed was part of an illegal and fraudulent scheme to improperly
extort settlement money and attorneyâs fees.
Further, that DeMartiniâs protected speech was a âwholly legitimate
considerationâ for the Town when deciding to file the civil RICO lawsuit also
renders the causation landscape more complex, just like it did in Nieves. Indeed,
as the Supreme Court recognized in Nieves, where protected speech is a âwholly
legitimate considerationâ for the government when deciding to act, as when a
subjectâs speech is itself a proper basis for the arrest, âthe causal inquiry is
complex,â such that, generally speaking, probable cause is a necessary element of a
retaliatory arrest claim. See Nieves, __ U.S. at __, 139 S. Ct. at 1723â24 (internal
quotation marks omitted). Here, in considering its available litigation responses to
DeMartini, the Town necessarily had to consider her record requests and
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lawsuitsâprotected speech though it may beâand the surrounding circumstances.
Therefore, like in Nieves, the causal complexity warrants that a plaintiff, like
DeMartini, must plead and prove the absence of probable cause for her First
Amendment retaliation claim to move forward. Otherwise, it would be extremely
difficult, if not impossible, to determine whether the filing of the RICO lawsuit
was caused by the Townâs legitimate consideration of the protected speech, its
alleged retaliatory animus, or both.
This type of First Amendment retaliation caseâone predicated on an
underlying civil lawsuit that the government had probable cause to bringârequires
our Court to address the intersection of (1) the fundamental principles that prohibit
the government from retaliating against a citizen for exercising her First
Amendment rights to free speech and to petition the government for redress; and
(2) other principles that define a governmentâs access to the court to file lawsuits to
remedy wrongs on behalf of its citizens. That CAFIâs fraudulent scheme involved
conduct protected by the First Amendment does not, in and of itself, mean that
§ 1983 automatically exposed the Town to strict liability civil damages because it
took action to protect itself from that fraud. The imposition of strict liability on the
government when the government has legitimate and objective reasons, based on
probable cause, to initiate the underlying lawsuit is not warranted, as outlined
above.
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For all of these reasons, we conclude that applying the objective, lack-of-
probable-cause requirement to a § 1983 First Amendment retaliation case
predicated on the filing of a civil lawsuit is appropriate because it strikes the proper
balance between protecting a plaintiffâs important First Amendment rights while,
at the same time, ensuring that the Town has a similar ability to access the courts to
protect itself and its citizens from non-meritorious litigation. Therefore, the
presence of probable cause will generally defeat a plaintiffâs § 1983 First
Amendment retaliation claim predicated on an underlying civil lawsuit, or
counterclaim for that matter.
Lastly, we must discuss whether there are possible exceptions to this general
rule. To date, the Supreme Court has not identified any exceptions to the no-
probable-cause requirement in § 1983 First Amendment retaliation claims
predicated on criminal prosecutions. Arguably, retaliation claims predicated on
prior civil lawsuits would not be subject to exceptions either.
We recognize, however, that the Supreme Court has, in two cases, identified
potential exceptions to the no-probable-cause requirement in § 1983 First
Amendment retaliation claims predicated on a criminal arrest. First, in Nieves, the
Supreme Court acknowledged a potential exception when a retaliatory-arrest
plaintiff not only establishes the arresting officerâs retaliatory animus but also
presents objective evidence that the plaintiff was arrested when people who had
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committed the same conduct, but who had not engaged in the same sort of
protected speech, had not been arrested by that officer. Nieves, 587 U.S. at __, 139
S. Ct. at 1727. Second, in Lozman, the Supreme Court delineated five âuniqueâ factual circumstances, which, if proven, would combine together to create an exception to the general no-probable-cause requirement for a plaintiff bringing a First Amendment retaliation claim predicated on retaliatory arrest. Lozman, 585 U.S. at __, __,138 S. Ct. at 1949
, 1954â55.
Whatever role these exceptions, articulated in a retaliatory arrest context,
might play in a case in which the plaintiff is alleging that a retaliatory civil lawsuit
has been filed against her, it is clear they play no role here. As to any Nieves
exception, there is no claim or evidence that other individuals engaged in similar
conduct, without ramifications, as did DeMartini and CAFI when they carried out
the fraudulent public records request scheme.
And, in any event, Lozman is so materially different from this case that its
five-pronged exception would not apply either. Pivotal factual ingredients to
Lozmanâs holding are missing here. In Lozman, the speech allegedly retaliated
againstâthe prior open meeting lawsuit and criticisms of city officialsâoccurred
five months earlier and was not the same conduct that, the defendant City claimed,
gave rise to Lozmanâs arrest. See id.at __, __,138 S. Ct. at 1949
, 1954â55. The
Lozman Court found this fact persuasive because it circumvented the difficulties in
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the type of retaliation claims the Supreme Court had been concerned about, that is,
arrests very close in time to the protected speech, where it would be difficult, if not
impossible, to tell whether the arrest âwas caused by the officerâs legitimate or
illegitimate consideration of speech.â 20 Id.at __,138 S. Ct. at 1953
.
Because the speech the Town allegedly retaliated against hereâthe public
records requests and subsequent lawsuitsâwas the same protected speech for
which the Town filed a civil lawsuit supported by probable cause, DeMartiniâs
retaliation claim is precisely the type of claim that the Supreme Court in Lozman
was concerned would prove indecipherable for purposes of proving causation and
therefore would create a serious risk of âdubiousâ First Amendment retaliatory
claims. See id.
In addition, the Supreme Court assumed for purposes of its decision that the
Cityâs ordering of Lozmanâs arrest was not a legitimate response to Lozmanâs five-
months-earlier open meetings lawsuit and criticisms. As the Supreme Court
explained, âit is difficult to see why a city official could have legitimately
considered [at the time of arrest] that Lozman had, months earlier, criticized city
officials or filed a lawsuit against the City.â Id.at __,138 S. Ct. at 1954
. In
contrast, the Town here had a legitimate, non-retaliatory litigation purpose in
20
The separation in time and type of conduct would purportedly allow the jury to readily
decide if plaintiff Lozmanâs arrest was due to Lozmanâs conduct at the meeting or due to
Lozmanâs prior lawsuit and criticisms five months earlier.
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considering CAFI and DeMartiniâs public records requests and lawsuits at the time
it filed its civil RICO lawsuit. Namely, to stem the hemorrhaging of public
resources that DeMartiniâs bad faith requests had caused. Further, the Town
engaged attorneys who investigated, recommended, and filed the Townâs RICO
lawsuit. There was no similar counsel in Lozman to complicate the causation
chain.
Accordingly, because the factual circumstances in Lozman are so materially
distinguishable from this case and because the Supreme Court carefully limited its
Lozman decision to its âunique facts,â we conclude that Lozmanâs exception to the
no-probable cause requirement does not help DeMartiniâs First Amendment
retaliation claim, even if it were potentially applicable.
For all of these reasons and under the totality of the circumstances, we
conclude that DeMartini has not shown that the district court erred in granting
summary judgment to the Town on her § 1983 First Amendment retaliation claim
predicated on the Townâs civil RICO lawsuit. 21
Separate from the elements of a First Amendment retaliation claim, all plaintiffs who
21
sue a municipality under § 1983 must show that execution of the municipalityâs policy or custom
caused the alleged injury. Monell v. Depât of Soc. Servs. of New York, 436 U.S. 658, 694â95,98 S. Ct. 2018, 2037-38
(1978); see also Pembaur v. City of Cincinnati,475 U.S. 469, 480
,106 S. Ct. 1292, 1298
(1986) (explaining that, in order to recover under § 1983, the plaintiff suing the
municipality must show that the âmunicipality has officially sanctioned or orderedâ the action
causing the alleged injury). A plaintiff may show a municipalityâs policy or custom in several
ways, including (1) showing the municipalityâs action was âan official policy enacted by [the
municipalityâs] legislative bodyâ; (2) demonstrating that a âfinal policymaker[] . . . acquiesced in
a longstanding practice that constitutes the entityâs standard operating procedure; or (3) proving
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Our conclusionâthat probable cause generally defeats a First Amendment
retaliation claim predicated on an underlying civil lawsuitâis also confirmed by
common-law doctrine. The Supreme Court has instructed that, â[w]hen defining
the contours of a claim under § 1983, we look to common-law principles that were
well settled at the time of its enactment.â Nieves, 587 U.S. at __, 139 S. Ct. at
1726(quotation marks omitted); Manuel v. City of Joliet, Ill., 580 U.S. at __,137 S. Ct. 911, 921
(2017) (stating that common-law principles guide the definition of § 1983 claims); Kalina v. Fletcher,522 U.S. 118, 123
,118 S. Ct. 502, 506
(1997)
(examining common-law doctrine when identifying the elements of the § 1983
cause of action and defenses available to state actors).
The Supreme Court has told us that when § 1983 was enacted in 1871, there
was no common-law tort for retaliatory arrest based on First Amendment protected
speech, and thus we should look to the common-law torts that provide the âclosest
analogyâ to such retaliatory arrest claims. See Nieves, 587 U.S. at __, 139 S. Ct. at
1726(internal quotation marks omitted). In Nieves, rather than deciding whether a common-law malicious prosecution claim or a false imprisonment claim was the âa subordinate public official [made] an unconstitutional decisionâ that was âthen adopted by someone who does have final policymaking authority.â Hoefling v. City of Miami,811 F.3d 1271, 1279
(11th Cir. 2016) (quotation marks omitted).
In this case, DeMartini relies on the first method to proceed against the Town under
Monell. Because our probable cause holding decides this case, we need not, and do not, address
whether the Townâs vote did or did not satisfy the threshold Monell showing of an existence of
an official policy.
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better analog to a retaliatory arrest claim, the Supreme Court concluded that the
presence of probable cause defeated both types of claims at common law and
would generally defeat a First Amendment retaliatory arrest claim. Id. at __, 139
S. Ct. at 1726â27.
Similarly, in DeMartiniâs case, there was no common-law tort for a First
Amendment retaliatory civil lawsuit claim when § 1983 was enacted. Yet Nievesâs
guidance leads us to ask what âcommon law tort[] . . . provide[s] the âclosest
analogyââ to a § 1983 First Amendment retaliation claim predicated on an
underlying retaliatory civil lawsuit? See Nieves, 587 U.S. __,139 S. Ct. at 1726
(quoting Heck v. Humphrey,512 U.S. 477, 484
,114 S. Ct. 2364, 2371
(1994)).
The closest analogy to DeMartiniâs § 1983 First Amendment retaliation
claim is a âwrongful civil proceedingsâ claim. See Profâl Real Estate Invârs, 508
U.S. at 62,113 S. Ct. at 1929
. As the Supreme Court has explained, â[t]he notion of probable cause, as understood and applied in the commonlaw tort of wrongful civil proceedings, requires the plaintiff to prove that the defendant lacked probable cause to institute an unsuccessful civil lawsuit and that the defendant pressed the action for an improper, malicious purpose.âId.
Likewise, the Restatement
(Second) of Torts defines the tort of wrongful civil proceedings as:
One who takes an active part in the initiation, continuation or
procurement of civil proceedings against another is subject to liability
to the other for wrongful civil proceedings if (a) he acts without
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probable cause, and primarily for a purpose other than that of securing
the proper adjudication of the claim in which the proceedings are based,
and (b) except when they are ex parte, the proceedings have terminated
in favor of the person against whom they are brought.
§ 674 (Am. Law. Inst. 1977) (emphasis added).
It has long been settled law, and DeMartini does not dispute, that wrongful
civil proceedings claims require proving the absence of probable cause. See T.
Cooley, Law of Torts 187-89 (1879); Profâl Real Estate Invârs, 508 U.S. at 63,113 S. Ct. at 1929
(âBecause the absence of probable cause is an essential element of the tort, the existence of probable cause is an absolute defense.â (citing Crescent City Live Stock Co. v. Butchersâ Union SlaughterâHouse Co.,120 U.S. 141, 149
,7 S. Ct. 472, 476
(1887)). Our holding hereâthat probable cause defeats
DeMartiniâs § 1983 First Amendment retaliation claimâis also consistent with,
and supported by, this common law.
VI. FLORIDA MALICIOUS PROSECUTION
On appeal, DeMartini also argues that the district court erred in granting
summary judgment to Wantman on her malicious prosecution claim under Florida
law. Although DeMartini agrees that the âlack of probable causeâ is a necessary
element of a Florida malicious prosecution claim, she nevertheless argues that
Wantman lacked such probable cause to file the civil RICO lawsuit against her.
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To prevail on a common-law tort of malicious prosecution under Florida
law, a plaintiff must establish the following elements:
(1) an original criminal or civil judicial proceeding against the present
plaintiff was commenced or continued; (2) the present defendant was
the legal cause of the original proceeding against the present plaintiff
as the defendant in the original proceeding; (3) the termination of the
original proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff; (4) there was an absence of
probable cause for the original proceeding; (5) there was malice on the
part of the present defendant; and (6) the plaintiff suffered damage as a
result of the original proceeding.
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355(Fla. 1994) (emphasis added); Durkin v. Davis,814 So. 2d 1246, 1248
(Fla. Dist. Ct. App. 2002); see Paez, 915 F.3d at 1291â92 (discussing these same elements of the common-law tort of malicious prosecution available under Florida law). The failure of a plaintiff to establish any one of these six elements is fatal to a claim of malicious prosecution. Mancusi,632 So. 2d at 1355
. Thus, as a necessary element, the existence of probable cause will defeat a claim for malicious prosecution.Id.
Under Florida law, to show probable cause to initiate a civil proceeding, âit
is not necessary to show that the instigator of a lawsuit was certain of the outcome
of the proceeding, but rather that he had a reasonable belief, based on facts and
circumstances known to him, in the validity of the claim.â Wright v. Yurko, 446
So. 2d 1162, 1166 (Fla. Dist. Ct. App. 1984). Stated another way, âthe instigator
must have had â[a] reasonable ground of suspicion, supported by circumstances
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sufficiently strong in themselves to warrant a cautious man in the belief that the
person accused is guilty of the offense with which he is charged.ââ Mee, 608 F.3d
at 1211(alteration in original) (quoting Goldstein v. Sabella,88 So. 2d 910, 911
(Fla. 1956)). A lack of probable cause can be shown â[w]here it would appear to a âcautious manâ that further investigation is justified before instituting a proceeding,â and such investigation is not undertaken. Harris v. Lewis State Bank,482 So. 2d 1378, 1382
(Fla. Dist. Ct. App. 1986).
In the context of a civil suit, probable cause is âmeasured by a lesser
standard than in a criminal suit.â Wright, 446 So. 2d at 1166. And the Florida Supreme Court has explained that â[w]hat facts and circumstances amount to probable cause is a pure question of law,â while the existence of those facts or circumstances âin any particular case is a pure question of fact.â City of Pensacola v. Owens,369 So.2d 328, 330
(Fla. 1979) (internal quotation marks omitted).
Here, the district court properly granted summary judgment to Wantman on
DeMartiniâs malicious prosecution claim because Wantman, like the Town, had
probable cause to file the RICO suit against her. It is undisputed that: (1) Gerald
Richman represented the Town and Wantman in the lawsuit; (2) Richman
investigated CAFIâs fraudulent scheme at length; (3) Richman called Wantman
about the lawsuit; and (4) Wantman agreed to join the Town in filing the lawsuit
based on discussions with Richman. Indeed, based on a year-long investigation,
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including reviewing Chandlerâs statements, Richman had obtained substantial
information that supported a reasonable belief that CAFI, OâBoyle, the OâBoyle
Law Firm, and other individualsâincluding DeMartiniâhad committed fraud
through their participation in an extortionate scheme involving fraudulent public
records requests, false settlement demands, and subsequent multiple lawsuits
designed to obtain attorneyâs fees as opposed to the requested records.22
We recognize that DeMartini stresses that Wantmanâs President and Federal
Rule of Civil Procedure 30(b)(6) representative, David Wantman, testified at his
deposition that (1) he had âno ideaâ who DeMartini was, and (2) aside
from discussing the matter with attorney Richman, Wantman did not independently
investigate DeMartiniâs role in CAFIâs fraudulent scheme. But the fact remains
that DeMartini does not dispute that Richman investigated CAFIâs scheme, advised
the Town and later Wantman about that scheme, and Wantman only agreed to join
the lawsuit after discussions with Richman.
Arising from their attorneyâclient relationship, Wantman and Richman had a
principal and agent relationship. See Durrett v. Jenkins Brickyard, Inc., 678 F.2d
911, 916 (11th Cir. 1982) (explaining that an attorney is his clientâs agent and
22
As noted earlier, DeMartini also brought a claim for malicious prosecution against
Gerald Richman. The district court granted summary judgment to Richman on that claim
because DeMartini failed to cite evidence from which a reasonable jury could infer that Richman
lacked probable cause for filing the RICO civil lawsuit. On appeal, DeMartini does not
challenge that ruling.
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representative). Information obtained by an agent is imputed to the agentâs
principal. See First Ala. Bank of Montgomery, N.A., First State Ins. Co., 899 F.2d
1045, 1074, 1079 (11th Cir. 1990) (stating that generally the agentâs knowledge is
imputed to the principal and is treated as the principalâs knowledge). Everything
that Richman knew about DeMartiniâs role in the scheme was imputed to
Wantman. Accordingly, Wantman had probable cause to file the RICO suit
against DeMartini.23
VII. CONCLUSION
For the foregoing reasons, we affirm the district courtâs grant of summary
judgment to the Town on DeMartiniâs § 1983 First Amendment retaliation claim
and to Wantman on her Florida malicious prosecution claim.
AFFIRMED.
23
The district court properly denied DeMartiniâs cross-motion for summary judgment
against Wantman. As described above, there is no genuine issue of material fact that Wantman
had probable cause to file the RICO action.
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ROSENBAUM, Circuit Judge, concurring:
I concur in much of the panelâs well-reasoned opinion. I write separately to
address the Majority Opinion only to the extent that it might be understood to suggest
that probable cause supporting the filing of a civil lawsuit predicated on prior civil
litigation may be all that is ever required to defeat a § 1983 First Amendment
retaliation claim. See Maj. Op. at 60 (âTo date, the Supreme Court has not identified
any exceptions to the no-probable-cause requirement in § 1983 First Amendment
retaliation claims predicated on criminal prosecutions. Arguably, retaliation claims
predicated on prior civil lawsuits would not be subject to exceptions either.â). With
any such suggestion, I firmly disagree.
Presumably, the Majority Opinion bases any suggestion that a finding of
probable cause may be all that is ever required in a case such as this one on Hartman
v. Moore, 547 U.S. 250(2006), since that is the sole alleged retaliatory criminal- prosecution case it discusses. But Hartman does not stand for the proposition that a showing of probable cause justifying a criminal prosecution necessarily forecloses a First Amendment retaliation claim in all cases. To the contrary, Hartman expressly explains that the showing of probable cause supporting a criminal prosecution âis not necessarily dispositive.âId. at 265
. That is so because âshowing . . . [the] presence [of probable cause] does not guarantee that [retaliation] was not the but-for fact in a prosecutorâs decision.âId.
Indeed, Hartman notes that â[a] prosecutorâs
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disclosure of retaliatory thinking on his part . . . would be of great significance . . . .
So would evidence that a prosecutor was nothing but a rubber stamp for his
investigative staff or the police.â Id. at 264. Nevertheless, Hartman reasons, because such incidents âare likely to be rare,â it makes sense for the rule to provide that probable cause supporting a criminal prosecution generally forecloses the viability of a First Amendment retaliation suit. Seeid.
But criminal prosecutions can result in the loss of liberty, can affect
reputation, and can be costly to the person prosecuted. As a result, they can be an
effective way to punish a speaker with whom the government disagrees and to chill
and slow down others who would consider voicing their discontent with the
government. So Hartman explicitly leaves the door open for First Amendment
retaliation claims based on probable-cause supported criminal actions that would not
have been brought but for an intent on the part of the government to retaliate against
the defendant for engaging in protected First Amendment activity.
The same is true of civil lawsuits. Probable cause supporting the filing of a
civil lawsuit predicated on prior civil litigation may, as a general rule, be all that is
required to defeat a § 1983 First Amendment retaliation claim. But civil litigation
is costly and stressful. It can also result in delays to the matters being litigated. So
like a criminal prosecution, litigation can also be a highly effective way to punish
and chill protected First Amendment activity.
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To ensure that the government is never permitted to weaponize litigation to
punish and chill protected speech, in every § 1983 First Amendment retaliation case
involving the filing of a lawsuit in response to prior civil litigation, even though
supported by probable cause, we must always at least evaluate the surrounding
circumstances, keeping in mind the considerations the Supreme Court has identified
in Hartman and in retaliatory-arrest cases such as Lozman v. City of Riviera Beach,
138 S. Ct. 1945(2018), and Nieves v. Bartlett,139 U.S. 1715
(2019). Of course, the
Majority Opinion did just that here, and it demonstrated why, in this case, those
considerations do not warrant an exception to the general rule that probable cause
supporting the filing of a lawsuit predicated on prior civil litigation defeats a § 1983
First Amendment retaliation claim. I therefore concur.
73