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The Law Office of Tom Norrid


P.O. Box 9244

Springfield, MO 65801-9244



No. 23-50

Argued April 15, 2024—Decided June 20, 2024

Justice Kagan

This case involves a dispute between petitioner Jascha Chiaverini and police officers from Napoleon, Ohio. The officers charged Chiaverini, a jewelry store owner, with three crimes: receiving stolen property, a misdemeanor; dealing in precious metals without a license, also a misdemeanor; and money laundering, a felony.  After obtaining a warrant, the police arrested Chiaverini and detained him for three days. But county prosecutors later dropped the case. Chiaverini, believing that his arrest and detention were unjustified, then sued the officers, alleging what is known as a Fourth Amendment malicious-prosecution claim under 42 USC 1983.  To prevail on this claim, he had to show that the officers brought criminal charges against him without probable cause, leading to an unreasonable seizure of his person.  The District Court, however, granted summary judgment to the officers, and the Court of Appeals for the Sixth Circuit affirmed. The Court of Appeals held that Chiaverini’s prosecution was supported by probable cause. In holding this, the court did not address whether the officers had probable cause to bring the money-laundering charge. In its view, there was clearly probable cause to charge Chiaverini with the two misdemeanors. And so long as one charge was supported by probable cause, it thought, a malicious-prosecution claim based on any other charge must fail. Held: The presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious-prosecution claim relating to another, baseless charge. The parties, and the United States as amicus curiae, all agree with this conclusion, which follows from both the Fourth Amendment and traditional common-law practice. Under the Fourth Amendment, a pretrial detention counts as an unreasonable seizure, and so is illegal, unless it is based on probable cause. See Manuel v. Joliet, 580 U.S. 357, at 364–369. Even when a detention is justified at the outset, moreover, it may become unreasonably prolonged if the reason for it lapses. Rodriguez v. United States, 575 U.S. 348, 354–357. So if an invalid charge causes a detention to start or continue, then the Fourth Amendment is violated. Bringing the invalid charge alongside a valid one does not categorically preclude this possibility. As the starkest possible example, consider a person detained on a drug offense supported by probable cause and a gun offense that is not. If the prosecutor drops the gun charge, leaving the person in jail on the drug charge alone, then the baseless charge has caused a constitutional violation by unreasonably extending the detention. The person should not be categorically barred from bringing a Fourth Amendment malicious-prosecution claim just because the baseless charge was brought along with a good one. The same conclusion follows from the common-law principles governing malicious-prosecution suits. This Court has analogized claims like Chiaverini’s to the common-law tort of malicious prosecution, and has explained that the tort can inform courts’ understanding of this type of claim. Thompson v. Clark, 596 U.S. 36, 43–44.  A plaintiff bringing a common-law malicious-prosecution suit had to show that an official initiated a charge without probable cause. But he did not have to show that every charge brought against him lacked an adequate basis. See, e.g., Barron v. Mason, 31 Vt. 189, 198 (it was no “defen[s]e that there was probable cause for part of the prosecution”). These uncontested points suffice to doom the Sixth Circuit’s categorical rule barring a Fourth Amendment malicious-prosecution claim if any charge is valid. Of course, a Fourth Amendment malicious-prosecution suit depends not just on an unsupported charge, but on that charge’s causing a seizure—like the arrest and three-day detention here. The parties and amicus curiae offer three different views of how that causation element is met when a valid charge is also in the picture. But this issue is not properly before the Court, so the Sixth Circuit should address it on remand. Pp. 4–8. Vacated and remanded.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. GORSUCH, J., filed a dissenting opinion.

DIAZ v. UNITED STATES, 2024 U.S. LEXIS 2709 (S. Ct.)

No. 23-14

Argued March 19, 2024—Decided June 20, 2024

Justice Thomas

Petitioner Delilah Diaz was stopped at a port of entry on the United States-Mexico border. Border patrol officers searched the car that Diaz was driving and found more than 54 pounds of methamphetamine hidden in the vehicle. Diaz was charged with importing methamphetamine in violation of 21 USC 952 and 960, charges that required the Government to prove that Diaz “knowingly” transported drugs. In her defense, Diaz claimed not to know that the drugs were hidden in the car. To rebut Diaz’s claim, the Government planned to call Homeland Security Investigations Special Agent Andrew Flood as an expert witness to testify that drug traffickers generally do not entrust large quantities of drugs to people who are unaware they are transporting them. Diaz objected in a pretrial motion under Federal Rule of Evidence 704(b), which provides that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” The court ruled that Agent Flood could not testify in absolute terms about whether all couriers knowingly transport drugs, but could testify that most couriers know they are transporting drugs. At trial, Agent Flood testified that most couriers know that they are transporting drugs. The jury found Diaz guilty, and Diaz appealed, challenging Agent Flood’s testimony under Rule 704(b). The Court of Appeals held that because Agent Flood did not explicitly opine that Diaz knowingly transported methamphetamine, his testimony did not violate Rule 704(b). Held: Expert testimony that “most people” in a group have a particular mental state is not an opinion about “the defendant” and thus does not violate Rule 704(b).  Pp. 4–11.

Federal Rule of Evidence 704(a) sets out a general rule that “[a]n opinion is not objectionable just because it embraces an ultimate issue.” The provision at issue, Rule 704(b), is an exception to that general rule. Rule 704 departed from the once-prevailing common-law practice that a witness could not state their conclusions on any ultimate issue, i.e., issues that the jury must resolve to decide the case. See United States v. Spaulding, 293 U.S. 498, 506.  When adopted in 1975, Rule 704 had no exceptions: All ultimate-issue opinions were permitted. Years later, Rule 704(b) was adopted to proscribe only expert opinions in a criminal case that are about whether a defendant has “a mental state or condition” that is “an element of the crime charged or of a defense.”  Pp. 4–7. In this case, Agent Flood did not express an opinion about whether Diaz herself knowingly transported methamphetamine. Instead, he testified about the knowledge of most drug couriers.  That opinion does not necessarily describe Diaz’s mental state. Because Agent Flood did not express an opinion about whether Diaz herself knowingly transported methamphetamine, his testimony did not violate Rule 704(b). Diaz’s counterarguments are unpersuasive. She first argues that Agent Flood functionally stated an opinion about whether she knowingly transported drugs when he opined that most couriers know that they are transporting drugs. But an opinion about most couriers is not an opinion about all couriers. Agent Flood asserted that Diaz was part of a group of persons that may or may not have a particular mental state.  The ultimate issue of Diaz’s mental state was thus left to the jury’s judgment.  Diaz next relies on dictionary definitions of “about” to argue that Rule 704(b)’s phrase “state an opinion about” includes all testimony that “concerns” whether the defendant had a particular state of mind. That text’s surrounding context, however, makes clear that Rule 704(b) addresses only conclusions as to the defendant’s mental state.  Rule 704(a) further confirms the narrow scope of testimony prohibited by Rule 704(b). Because Rule 704(b) is an “exception” to Rule 704(a), Rule 704(b) can only be understood to cover a subset of the testimony that Rule 704(a) expressly allows, which is opinion testimony that includes ultimate issues.  Diaz’s reading would have the exception swallow the rule.  Pp. 7–11.


THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. JACKSON, J., filed a concurring opinion. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.


GONZALEZ v. TREVINO, 2024 U.S. LEXIS 2708 (S. Ct.)

No. 22-1025

June 20, 2024

In Nieves v. Bartlett, 587 U.S. 391, 402 (2019), this Court held that, as a general rule, a plaintiff bringing a retaliatory-arrest claim “must plead and prove the absence of probable cause for the arrest.” At the same time, we recognized a narrow exception to that rule. The existence of probable cause does not defeat a plaintiff ’s claim if he produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id., at 407. We granted certiorari in this case to consider whether the Fifth Circuit properly applied these principles. It did not. We therefore vacate that court’s judgment and remand for proceedings consistent with this opinion. In 2019, Sylvia Gonzalez ran for a seat on the city council of Castle Hills, a small town in southern Texas.  While she was on the campaign trail, Gonzalez heard multiple complaints about the city manager, Ryan Rapelye. As city manager, Rapelye was responsible for, among other things, enforcing the city’s laws and managing its budget. Gonzalez was elected in May 2019.  Her first act in office was to help gather signatures for a petition seeking Rapelye’s removal. Eventually, over 300 residents signed the petition. The petition was introduced at the next city council meeting, where discussions grew heated after various residents rose to Rapelye’s defense and spoke against Gonzalez. The discussion over the petition continued the next day. At the end of the second day, Gonzalez was packing up her belongings when the mayor, Edward Trevino, II, asked her for the petition. Gonzalez indicated that the petition was in Trevino’s possession, which he denied. He then asked Gonzalez to check her binder where she found the petition. Gonzalez claims that she “did not intentionally put the petition in her binder,” and that she was “surprise[d]” to find it there.  Complaint and Jury Demand in No. 5:20–cv–01151 (WD Tex., Sept. 9, 2020), ECF Doc. 1, p. 11. Trevino brought this incident to the city police’s attention, and an investigation into these events soon began. Within a month, a private attorney tasked with leading the investigation concluded that Gonzalez had likely violated a Texas anti-tampering statute that, among other things, prohibits a person from intentionally “remov[ing] . . . a governmental record.” Tex. Penal Code Ann. 37.10(a)(3), (c)(1) (West Cum. Supp. 2023). On the private attorney’s request, a local Magistrate granted a warrant for Gonzalez’s arrest. When she heard the news, Gonzalez turned herself in and spent an evening in jail. The district attorney ultimately dismissed the charges. Gonzalez claims that this episode has convinced her to step away from political life. Gonzalez brought suit under 42 USC 1983, in Federal District Court against Trevino along with the police chief and the private attorney in their individual capacities. Her complaint alleged that she was arrested in retaliation for her role in organizing the petition for Rapelye’s removal and that the defendants therefore violated her First Amendment rights. To bolster her claim, Gonzalez alleged that she had reviewed the past decade’s misdemeanor and felony data for Bexar County (where Castle Hills is located) and that her review had found that the Texas anti-tampering statute had never been used in the county “to criminally charge someone for trying to steal a nonbinding or expressive document.” ECF Doc. 1, at 17. Gonzalez’s search turned up 215 felony indictments, and she characterized the typical indictment as involving “accusations of either using or making fake government identification documents.” Ibid. Other felony indictments included ones for fake checks, hiding murder evidence, or cheating on government exams. Every misdemeanor case, according to Gonzalez, involved “fake social security numbers, driver’s licenses, [or] green cards.” Ibid. Gonzalez pointed to this research as evidence that the defendants had engaged in a political vendetta by bringing a “sham charge” against her. Id., at 27. The defendants moved to dismiss the complaint. They argued that the presence of probable cause defeated Gonzalez’s retaliatory-arrest claims against the individual defendants. The District Court denied the defendants’ motion. Although Gonzalez conceded that probable cause supported her arrest, the court allowed her claim to advance after finding that it fell within an exception to the no probable-cause rule that we recognized in Nieves. Gonzalez v. Castle Hills, 2021 WL 4046758, *5 n.7 (WD Tex., Mar. 12, 2021). GONZALEZ v. TREVINO Per Curiam The Fifth Circuit reversed that decision on appeal. The court thought that a plaintiff ’s claim could fall within the Nieves exception only if the plaintiff proffered “comparative evidence” of “otherwise similarly situated individuals who engaged in the same criminal conduct but were not arrested.” 42 F.4th 487, 493 (2022) (internal quotation marks omitted). Gonzalez’s claim failed because she did not provide such evidence. We granted certiorari. 601 U. S. ___ (2023). Gonzalez seeks reversal on two grounds. First, she asks us to reject the Fifth Circuit’s rule that plaintiffs must use specific comparator evidence to demonstrate that they fall within the Nieves exception. Second, Gonzalez contends that the Nieves no-probable-cause rule applies only to claims predicated on split-second arrests, rather than deliberative ones. We agree with Gonzalez that the Fifth Circuit took an overly cramped view of Nieves. That court thought Gonzalez had to provide very specific comparator evidence—that is, examples of identifiable people who “mishandled a government petition” in the same way Gonzalez did but were not arrested. 42 F.4th at 492.  Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far. We recognized the Nieves exception to account for “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” 587 U.S. at 406. To fall within the exception, a plaintiff must produce evidence to prove that his arrest occurred in such circumstances. The only express limit we placed on the sort of evidence a plaintiff may present for that purpose is that it must be objective in order to avoid “the significant problems that would arise from reviewing police conduct under a purely subjective standard.” Id., at 407. 5 Here, Gonzalez provided that sort of evidence. She was charged with intentionally “remov[ing] . . . a governmental record.” Tex. Penal Code Ann. 37.10(a)(3). Gonzalez’s survey is a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel—makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past. Because we agree with Gonzalez’s first argument we do not need to reach her second.  We vacate the judgment below and remand the case for the lower courts to assess whether Gonzalez’s evidence suffices to satisfy the Nieves exception.

It is so ordered.

ALITO, J., concurring 

KAVANAUGH, J., concurring 

JACKSON, J., concurring 

THOMAS, J., dissenting

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The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionat


The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionat


The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionat


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