Arguable Probable Cause Shields Officers from First-Amendment Retaliatory Arrest Liability
Comprehensive Commentary on Detreville v. Gurevich, 91 F.4th ___ (10th Cir. 2025)

1. Introduction

In Detreville v. Gurevich, the United States Court of Appeals for the Tenth Circuit revisited the qualified-immunity landscape at the intersection of the First, Fourth, and Fourteenth Amendments. The court reversed a district-court refusal to grant summary judgment on a First-Amendment retaliatory-arrest claim, holding that the officers’ possession of arguable probable cause— even if actual probable cause was absent— defeats clearly-established-law for retaliatory-arrest purposes. Simultaneously, the panel clarified procedural rules governing waiver of qualified immunity, interlocutory appellate jurisdiction, and the appropriate treatment of malicious-prosecution and selective-enforcement claims.

The decision is important for three reasons:

• It expressly aligns the Tenth Circuit with other circuits that use arguable probable cause as the benchmark for qualified immunity in First-Amendment retaliatory-arrest cases.
• It instructs district courts that once qualified immunity is raised, they must analyze both prongs; failure to do so is reversible error.
• It underscores that race-based selective-enforcement claims are analytically distinct from Fourth-Amendment-based claims, and thus cannot be disposed of merely by pointing to arguable probable cause.

Background Facts in Brief

Kevin Detreville, a Black citizen-journalist, filmed inside the enclosed entryway of the Denver Police District 5 (“DPD 5”) station despite signage stating: “NO VIDEO RECORDING … without prior permission from the Chief of Police.” Officers Sergey Gurevich and Julie Weinheimer arrested him under Colo. Rev. Stat. § 18-9-117 (interference with public buildings) after twice warning him to stop. Two days later, a magistrate judge found probable cause and released him on bond; charges were dismissed four months later. Crucially, the day after the arrest a white individual, John Reed, filmed in the same entryway but was not arrested.

2. Summary of the Judgment

The district court had:

• Granted qualified immunity on Detreville’s unlawful-arrest claim, finding officers lacked actual but had arguable probable cause.
• Denied summary judgment on claims for retaliatory arrest (First Amendment), malicious prosecution (Fourth Amendment), and selective enforcement (Equal Protection), reasoning that the officers “waived” qualified immunity on those theories.

On appeal the Tenth Circuit:

1. Reversed the denial of summary judgment on the retaliatory-arrest claim because arguable probable cause precluded clearly-established law.
2. Remanded the malicious-prosecution and equal-protection claims. The district court must determine, in the first instance, whether clearly-established law was violated.
3. Held that the officers had not waived qualified immunity, thus conferring interlocutory jurisdiction on the appellate court.
4. Refused to revisit the district court’s arguable-probable-cause finding on the abandoned unlawful-arrest claim because Detreville failed to cross-appeal.

3. Analysis

3.1 Precedents Cited and Their Influence

• Nieves v. Bartlett, 587 U.S. 391 (2019) – Supreme Court held that retaliatory-arrest plaintiffs must ordinarily plead absence of probable cause, but may proceed by showing selective non-arrest of similarly situated individuals. The Tenth Circuit relied on Nieves for the doctrinal framework, then asked whether clearly established law prohibited arrest when arguable probable cause existed.
• Reichle v. Howards, 566 U.S. 658 (2012) – Confirmed that officers are entitled to qualified immunity on retaliation claims where probable cause exists. The panel quoted Reichle to reinforce the uncertainty surrounding a “right to be free from retaliatory arrest” when probable cause (or its close cousin, arguable probable cause) is present.
• Pearson v. Callahan, 555 U.S. 223 (2009) – Provides discretion to decide the “clearly-established” prong first. The Tenth Circuit exercised that discretion for the retaliatory-arrest claim.
• Multi-Circuit Qualified-Immunity Cases – Somers v. Devine (4th Cir. 2025), Roy v. City of Monroe (5th Cir. 2020), Novak v. City of Parma (6th Cir. 2022), Just v. City of St. Louis (8th Cir. 2021) – all treat arguable probable cause as dispositive for retaliation claims. By joining this line, the Tenth Circuit harmonizes inter-circuit doctrine.
• Marshall v. Columbia Lea, 345 F.3d 1157 (10th Cir. 2003) – Key Tenth-Circuit precedent on racially selective traffic enforcement. Provided the template for the court’s equal-protection analysis (discriminatory purpose plus discriminatory effect).
• Stonecipher v. Valles, 759 F.3d 1134 (10th Cir. 2014), and Kaufman v. Higgs, 697 F.3d 1297 (10th Cir. 2012) – Define elements of Fourth-Amendment malicious prosecution and articulate “arguable probable cause” as the qualified-immunity yardstick.

3.2 Court’s Legal Reasoning

3.2.1 Qualified Immunity Was Not Waived

The district court treated the defense as waived because the officers allegedly mentioned it only in reply briefing. The Tenth Circuit meticulously reviewed the record and held the officers had asserted qualified immunity in their opening motion (`“are entitled to qualified immunity and judgment in their favor”`). Under Sawyers v. Norton, once the defense is raised, the burden shifts to the plaintiff. Consequently, the district court was obliged to analyze both prongs.

3.2.2 Arguable Probable Cause and Retaliatory Arrest

Because retaliatory arrest requires the plaintiff to demonstrate absence of probable cause (unless the Nieves exception applies), the panel asked whether the right to be free from arrest, where arguable probable cause exists, was “beyond debate.” Finding no controlling case prohibiting arrests supported by arguable probable cause, and noting the persuasive weight of sister-circuit authority, the court concluded the law was not clearly established. Qualified immunity therefore attached.

3.2.3 Malicious Prosecution – A Distinct Probable-Cause Inquiry

Although the unlawful-arrest analysis looked only at the knowledge possessed at the moment of arrest, malicious-prosecution doctrine focuses on events after legal process begins. That meant reviewing the content (and omissions) of Officer Gurevich’s sworn probable-cause statement and the state magistrate’s determination. The panel found the record insufficiently developed and remanded so the district court can decide whether a reasonable officer could have believed probable cause persisted at arraignment.

3.2.4 Selective Enforcement & Equal Protection

Crucially, the court distinguished equal-protection claims from Fourth-Amendment claims: the former do not turn on probable cause. If race was a “motivating factor” and similarly situated persons of another race were not arrested, a constitutional violation exists notwithstanding arguable probable cause. Because the district court never reached the clearly-established-law prong, the Tenth Circuit remanded for that task.

3.3 Likely Impact of the Judgment

• First-Amendment Litigation: Plaintiffs confronting retaliatory arrests in the Tenth Circuit must now plead and prove absence of arguable probable cause, a higher hurdle that mirrors the Fourth-Amendment unlawful-arrest standard. Videographers, protesters, and journalists should prepare for intensified evidentiary battles over what constitutes “arguable” probable cause.
• Police-Practice Advisory: Departments may interpret the ruling as validation that reasonable mistakes of law or fact shield them from First-Amendment liability. Training should emphasize documenting the information supporting probable cause at the time of arrest.
• District-Court Procedure: Judges within the circuit must conduct a full two-prong qualified-immunity analysis whenever the defense is raised, even if poorly briefed. Failure to do so risks reversal.
• Equal-Protection Jurisprudence: By indicating that arguable probable cause is irrelevant to selective-enforcement analysis, the decision safeguards the vitality of race-based discriminatory-arrest claims. Defendants must therefore defend such claims on different terrain—typically by contesting discriminatory intent or effect—rather than leaning on probable-cause arguments.
• Appellate Strategy: The opinion reiterates the importance of cross-appeals. An appellee seeking to disturb a district-court finding (e.g., arguable probable cause) must cross-appeal, or the matter is closed on appeal.

4. Complex Concepts Simplified

Qualified Immunity

A defense shielding officials from damages unless (1) they violated a constitutional right and (2) that right was “clearly established” such that any reasonable officer would know the conduct was unlawful.

Arguable Probable Cause

Even if actual probable cause is later found lacking, an officer enjoys immunity if a reasonable officer, faced with the same facts, could have believed probable cause existed. Think of it as “reasonable mistake” protection.

Retaliatory Arrest

An arrest allegedly made to punish the arrestee for exercising First-Amendment rights. After Nieves, plaintiffs must show lack of probable cause or selective enforcement.

Malicious Prosecution (Fourth Amendment variant)

Suing for wrongful continuation of criminal proceedings after legal process has begun. Requires, inter alia, lack of probable cause at or after the initiation of process.

Selective Enforcement / Equal Protection

Government action that intentionally treats one person differently from others because of race, ethnicity, or another protected trait. Presence of probable cause does not excuse discriminatory motives.

Interlocutory Appeal

An appeal taken before the final judgment, permissible here under the “collateral-order doctrine” when a court denies qualified immunity on purely legal grounds.

5. Conclusion

Detreville v. Gurevich cements the principle that arguable probable cause bars First-Amendment retaliatory-arrest suits in the Tenth Circuit. By realigning the circuit with nationwide authority, the ruling narrows the path for plaintiffs alleging retaliation but expands clarity for officers making split-second decisions. At the same time, the opinion protects the integrity of race-based selective-enforcement claims by separating them from the probable-cause calculus and reminds district courts of their non-delegable duty to analyze both prongs of qualified immunity. Practitioners should heed the procedural lessons on waiver and cross-appeals, while civil-rights advocates must recalibrate litigation strategies to confront the heightened arguable-probable-cause hurdle fashioned by this precedent.