For the Defense - Volume 2, Issue 4 - 2017 - 25

that person of his or her Constitutional rights.
The following potential federal causes of action
present themselves in our hypothetical.
First Amendment Retaliatory Claim. The police
cannot arrest you simply for engaging in
protected First Amendment activity. In Fields v.
City of Philadelphia, the Third Circuit recently
(finally!) clearly established that observing,
photographing, and recording police while
they are on the job is protected activity under
the First Amendment.3 Other examples of First
Amendment protected activity that sometimes
trigger retaliatory arrests by the police include
political demonstrations and (colorfully) verbalizing one's displeasure at the manner in which
an officer may be doing his or her job. For a First
Amendment retaliation claim in our hypothetical,
your client would have to establish (1) your client
was engaging in activity protected by the First
Amendment; (2) the police took adverse action
against your client that would deter a person
of ordinary firmness from continuing to engage
in the protected activity; and (3) the protected
activity was a substantial or motivating factor in
the officer's adverse actions against your client.4
Unlawful Arrest. Warrantless arrests made
without probable cause constitute a violation of
the Fourth Amendment. The test for whether
the warrantless arrest was constitutionally valid
depends on whether, "at the moment the arrest
was made, the officers had probable cause to
make it - whether at that moment the facts and
circumstances within their knowledge and of
which they had reasonable trustworthy information were sufficient to warrant a prudent man in
believing that [your client] had committed or was
committing an offense."5
Excessive Force. The unreasonable or excessive
use of force during any arrest, investigatory stop
or any other seizure of a person violates the
Fourth Amendment and may be actionable under
Section 1983. An excessive force claim is not necessarily barred by a criminal conviction depending
on the nature of the conviction and the extent of

force used.6 An officer is permitted to use "reasonable" force, if necessary, to conduct a lawful
arrest.7 Of course, no force is permitted to effectuate an unlawful arrest. Whether the amount
of force is "reasonable" is an objective standard
- the actual motivation or intention of the officer
is not relevant.8 Fact finders consider the totality
of the circumstances when determining whether
the force used was reasonable. They can consider
the need, if any, for force; the severity of the
crime at issue; whether the person arrested posed
an immediate threat to the safety of others; and
the extent of the injury inflicted.9
Malicious Prosecution. To prove a Fourth
Amendment malicious prosecution claim, your
client must show (1) the officer initiated a criminal proceeding (that his report and his statement
led to the prosecutor's decision to bring criminal
charges); (2) the criminal proceedings ended in
your client's favor; (3) the officer initiated the
proceedings without probable cause; (4) the
officer acted maliciously or for a purpose other

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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017