Eighth Circuit Narrows the Nieves Exception for First Amendment Retaliation Claims


In Murphy v. Schmitt, Officer Michael Schmitt stopped Mason Murphy for walking on the wrong side of the highway.  Murphy refused to identify himself, and the two men argued for several minutes before Schmitt arrested Murphy for failing to identify himself.  Murphy argued that he was arrested in retaliation for exercising his First Amendment right to freedom of speech in a suit for First Amendment retaliation and unlawful detention.  The district court granted Schmitt’s motion to dismiss based on qualified immunity, and Murphy appealed to the Eighth Circuit. In a majority decision, the Eighth Circuit affirmed the district court’s decision.

By: Fabian Reyher

Murphy v. Schmitt, 2023 WL 5748752 (8th Cir. 2023)

I.               Introduction

            In Murphy v. Schmitt, the Eighth Circuit held that Mason Murphy failed to state a claim for First Amendment retaliation because Officer Michael Schmitt had probable cause to arrest Murphy under Missouri Revised Statute § 300.405.[1]  While both parties agreed that there was probable cause for the arrest, Murphy argued that the Nieves exception applied.[2]  This rule states that “the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”[3]  Ultimately, the Eighth Circuit held that the exception does not apply, and affirmed the district court’s decision to grant Schmitt’s motion to dismiss.[4]

II.              Facts and Holding

            Mason Murphy was walking down the wrong side of a rural road when Officer Michael Schmitt of the Sunrise Beach Police Department stopped him.[5]  Murphy’s conduct was a violation of Missouri Revised Statute § 300.405, which requires pedestrians to walk against the flow of traffic.[6]  Murphy refused to identify himself and began to argue with Schmitt for several minutes before being put in handcuffs.[7]  Murphy asked Schmitt why he was being arrested, and Schmitt refused to answer.[8]  On the way to the police station, Murphy again asked Schmitt why he was being arrested, and Schmitt responded the arrest was for failure to identify.[9]

            At the station, Schmitt made a call to an unknown individual and said, “saw the dip shit walking down the highway and [he] would not identify himself.”[10]  He also asked, “What can I charge him with?”[11]  Moreover, Schmitt falsely claimed that Murphy was intoxicated, despite admitting multiple times that he did not smell anything on Murphy.[12]  Schmitt insisted that Murphy sit in his jail cell “for being an asshole.”[13]  Murphy was released after two hours in a jail cell.[14]

            Murphy filed a suit alleging his arrest was retaliatory based on a First Amendment protected activity.[15]  Specifically, he argued that even though there was probable cause for his arrest, other similarly situated persons would not have been arrested for walking on the wrong side of the road.[16]  Murphy concluded that the officer arrested him because of his argumentative tone.[17]  Based on “experience and common sense,” the Eighth Circuit held that Murphy failed to state a claim sufficient to overrule Schmitt’s motion to dismiss.[18] 

III.              Legal Background

A.    First Amendment Retaliation

            Generally, the First Amendment prohibits government officials from arresting and retaliating against an individual for exercising his or her freedom of speech.[19]  A First Amendment retaliation claim requires three elements: (1) the plaintiff engage in a protected activity; (2) the government official took adverse action against the plaintiff that would chill a person of ordinary firmness from continuing that activity; and (3) the adverse action was motivated at least in part by the exercise of the protected activity.[20]  As a general rule in First Amendment retaliation cases, probable cause would generally defeat the retaliation claim, since probable cause provides a legal basis for detaining an individual.[21]  However, the Supreme Court carved a narrow exception in Nieves v. Barlett that allows arrested individuals to bring a retaliation claim even when there is probable cause for the arrest.[22]

B.    The Nieves Exception

            In Nieves v. Bartlett, Russell Bartlett was arrested by Officer Luis Nieves for disorderly conduct and resisting arrest.[23]  At the “Arctic Man” sports festival, Nieves testified that Bartlett was intoxicated and acting belligerently and aggressive in public.[24]  Nieves took Bartlett to the holding tent where he was charged and released a few hours later.[25]  The State ultimately dismissed the charges and Bartlett later sued for First Amendment retaliation, the protected speech being Bartlett’s refusal to speak with Officer Nieves.[26]  The district court granted summary judgment in favor of Nieves, determining that the officer had probable cause to arrest Bartlett, which precluded any retaliation claim.[27]  The Ninth Circuit disagreed, concluding that “[the] retaliatory arrest is sufficiently chilling, and Bartlett had presented enough evidence that his speech was a but-for cause of the arrest.”[28]  The court relied on Bartlett’s affidavit alleging that Nieves stated, “bet you wish you would have talked to me now.”[29]

            The Supreme Court granted certiorari to answer whether the existence of probable cause defeats a First Amendment retaliation claim.[30]  First, the Court analyzed retaliation claims in general, noting that there must be a causal connection between the government’s “retaliatory animus” and the plaintiff’s subsequent injury.[31]  In other words, the officer’s motive must be a but-for cause of the arrested individual’s injury.[32]  Thus, plaintiffs must show as a threshold matter that there was no probable cause for the arrest.[33]

            However, the Supreme Court created a notable exception for the no-probable-cause requirement in a retaliation claim.[34]  This exception allows a plaintiff to bring a First Amendment retaliation claim even where probable cause exists when officers typically do not exercise their discretion in arresting an individual for a particular crime.[35]  The Supreme Court offered jaywalking as an example of such a crime where officers typically do not arrest an individual for a violation.[36]  If an individual were to be arrested for jaywalking after arguing with an officer, that individual would still have a right to bring a retaliation claim, even though there was probable cause to arrest him for jaywalking.[37]  Thus, the Nieves exception created an objective inquiry to determine if other similarly situated individuals would have been arrested for committing the crime they are charged with.[38]

IV.              Instant Decision

A.    Majority Decision

            In the Eighth Circuit’s majority opinion, the court held that Murphy failed to state a claim for First Amendment retaliation utilizing the Nieves exception.[39]  Both parties agreed that Murphy violated Missouri Statute § 300.405 by walking on the wrong side of the road.[40] However, Murphy argued that because that violation is not one where officers typically arrest individuals, he should be able to bring his claim under the Nieves exception.[41]

            The Eighth Circuit majority refused to incorporate this exception, reasoning that Murphy failed to demonstrate a “facial plausibility” that police commonly see this violation and fail to make arrests.[42]  Murphy relied on the jaywalking example the Supreme Court used in Nieves, arguing that an arrest for walking on the wrong side of the road is similar to jaywalking.[43]  The Eighth Circuit, though, differentiated the two scenarios by stating that the Supreme Court’s hypothetical specified an arrest in an area where jaywalking is “endemic.”[44]  Further, the Eighth Circuit refused to give Murphy an opportunity to investigate or discover a pattern of police arrests for violations of the Missouri statute.[45]  Finally, the majority opinion affirmed the district court’s ruling, stating that “[a]s a matter of experience and common sense the present allegations do not show violations of § 300.405 are so common as to be ‘endemic’ or are so frequently observed as to give rise to a ‘reasonable inference’ that officers ‘typically exercise their discretion’ not to arrest.”[46]

B.    Dissent

            Judge Steven Grasz was the lone dissenter and believed that Murphy pled sufficient facts to demonstrate that the Sunrise Beach Police Department does not regularly enforce the law for walking on the wrong side of the road, and the First Amendment retaliation claim should have survived the motion to dismiss.[47]  Judge Grasz recounted some of the key facts involving the arrest, focusing on Officer Schmitt’s scrambling to justify the arrest and his attitude towards Murphy when he was in jail.[48]  The dissenting opinion further noted that if it were typical practice for the Sunrise Beach Police Department to arrest individuals for walking on the wrong side of the road, Schmitt would have had little trouble in identifying a basis for the arrest.[49]  Instead, Judge Grasz explains, “Officer Schmitt arrested Murphy for challenging and criticizing him before later exploring various legal justifications for the arrest.”[50]  This indicates a pretextual arrest, which supports an application of the Nieves exception.[51]

            While Murphy pled several facts about the officer’s subjective intent, he was never afforded an opportunity to provide any objective evidence regarding the police department’s selective enforcement of the statute.[52]  Since the district court granted the motion to dismiss in the pre-trial stage of litigation, Murphy could never prove the objective evidence requirement to bring a First Amendment retaliation case under the Nieves exception.[53]

V.              Comment

            The Eighth Circuit majority in Murphy v. Schmitt seems to further limit an already narrow exception to retaliation cases.  The Supreme Court carefully carved the Nieves Exception to protect criminal defendants from government official retaliation where it is evident that officers do not typically arrest individuals for certain crimes.  As the Supreme Court in Nieves hypothesized, when an argumentative man is arrested with probable cause for jaywalking, he should still be able to bring a retaliation case, since there could exist a causal, but-for, connection between the argument and the arrest.[54]  This exception is vital in order to protect a criminal defendant’s freedom of speech.

            However, the majority refuses to apply the exception to the present case because Murphy did not provide any objective evidence as to the Sunrise Beach Police Department’s typical practice in enforcing Missouri Revised Statute § 300.405, a statute that prohibits walking on the wrong side of the road.[55] Utilizing the majority’s analysis of “common sense and experience,” even without objective evidence, it is hard to conclude that walking on the wrong side of the road is an offense for which an officer would make an arrest.  If, however, the pedestrian was argumentative, it is foreseeable that an officer would take offense to such speech and would find any means to enforce their police power.

            From the facts in the present case, it is evident that Officer Schmitt took offense to Murphy’s speech and was scrambling to find any reason to arrest Murphy for challenging the reason for his arrest.  Schmitt was asking what he could possibly arrest Murphy for, and he insisted that Murphy sit in his cell for “being an asshole.”[56]  However, because neither court offered Murphy a chance to show the police department’s selective enforcement of the statute, Murphy could not defend his First Amendment right to freedom of speech.


[1] Murphy v. Schmitt, No. 22-1726,  2023 WL 5748752, at *2 (8th Cir. Sept. 6, 2023).

[2] Id.

[3] Id. (quoting Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019)).

[4] Id.

[5] Id. at *1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at *3 (Grasz, J., dissenting).

[13] Id.

[14] Id.

[15] Id. at *1.

[16] Id. at *2.

[17] Id. at *2.

[18] Id.

[19] Hartman v. Moore, 547 U.S. 250, 256 (2006).

[20] Greenman v. Jessen, 787 F.3d 882, 891 (8th Cir. 2015).

[21] Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019).

[22] Id.

[23] Id. at 1717.

[24] Id. at 1720.

[25] Id. at 1721.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 1721–22.

[31] Id. at 1722.

[32] Id.

[33] Id.

[34] Id. at 1727.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Murphy v. Schmitt, No. 22-1726,  2023 WL 5748752, at *2 (8th Cir. Sept. 6, 2023).

[40] Id.

[41] Id.

[42] Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id. at *2 (Grasz, J., dissenting).

[48] Id. at *3 (Grasz, J., dissenting).

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019).

[55] Mo. Rev. Stat. § 300.405.

[56] Murphy,  2023 WL 5748752, at *3 (Grasz, J., dissenting).