Politically retaliatory arrest claim stated

Plaintiff stated a claim that his stopping and ticketing was based on political motives and lacked probable cause. Gullick v. Ott, 517 F. Supp. 2d 1063 (W.D. Wis. 2007). This is a fascinating opinion, and this is just a tiny part of it:

As a general proposition, the court of appeals has rejected defendant’s argument. Generally, it makes no difference whether the defendant could have taken an adverse action against the plaintiff for a legitimate reason. If the actual reason was the plaintiff’s exercise of a constitutional right, the defendant may be held liable for retaliation under § 1983. Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693, 699 (7th Cir. 2002). See also Crawford-El v. Britton, 523 U.S. 574, 577, 594 (1998) (in First Amendment retaliation case, rejecting “proposal to immunize all officials whose conduct is ‘objectively valid,’ regardless of improper intent”); Balderston v. Fairbanks Morse Engine Division of Coltec Industries, 328 F.3d 309, 323 (7th Cir. 2003) (in discrimination case, refusing to consider alleged deficiencies of plaintiff when there was no evidence that those deficiencies actually influenced decision maker in terminating plaintiff).

As will be discussed further below, in almost every case involving retaliation, the defendant advances an objective reason for taking the adverse action against the plaintiff. Never has the court of appeals suggested that a defendant may avoid liability simply by identifying a theoretical justification for his conduct. Even in the prison context, where First Amendment rights are at their weakest, the court of appeals has made it clear that motive matters. E.g., Hasan v. United States Dept. of Labor, 400 F.3d 1001, 1006 (7th Cir. 2005). In other words, an official may not take refuge in a pretextual justification that in fact had nothing to do with his actions.

On its face, this rule makes perfect sense. If probable cause acts as an absolute bar for any retaliation claim against a police officer, this would provide immunity for even the most egregious examples of selective enforcement. And yet, more than 120 years ago, the Supreme Court held that even a statute that is valid on its face may not stand if it is enforced in a discriminatory fashion. Yick Wo v. Hopkins, 118 U.S. 356 (1886). Thus, the consequences of accepting defendant’s argument are troubling because it would permit unethical officers to target their enemies or critics with a litany of citations for petty violations that would be ignored if committed by anyone else. Mark A. Edwards, Law and the Parameters of Acceptable Deviance, 97 J. Crim. L. & Criminology 49, 87 (Fall 2006) (arguing that risk of selective enforcement is greatest when conduct is “formally illegal” but within zone of “acceptable deviance,” such as driving several miles an hour over speed limit). If, as the Court has observed, “the Constitution prohibits selective enforcement of the law based on considerations such as race,” Whren v. United States, 517 U.S. 806, 813 (1996), it follows that the Constitution equally prohibits selective enforcement because of an exercise of a constitutional right.

Defendant could not complain that a witness told of conversations between her and the defendant over the jail telephone which led to obtaining the jail tapes. Also, the court assumed he had standing to challenge a search of his girlfriend’s apartment which he was a casual visitor to, but she clearly consented. [He clearly did not have standing.] United States v. Plummer, 2007 U.S. Dist. LEXIS 75258 (W.D. Pa. October 10, 2007).*

Immigration checkpoint stop quickly turned into reasonable suspicion. The first part of the stop lasted only 60-90 seconds. United States v. Hinojosa-Echavarria, 250 Fed. Appx. 109 (5th Cir. 2007)* (unpublished).

Defendant’s arrest led to a spontaneous admission and officers observing a blood trail in his apartment. Defense counsel was not ineffective for not challenging a futile motion to suppress. United States ex rel. Brown v. McCann, 2007 U.S. Dist. LEXIS 74927 (N.D. Ill. October 5, 2007).*