Clarifying the Nieves Exception: Objective Comparators and Probable Cause in First Amendment Retaliation Claims

Introduction

Angel E. Gaston v. City of Leesburg, No. 24-10276 (11th Cir. Jan. 21, 2025) arises from Gaston’s October 27, 2020 arrest outside the Leesburg, Florida police station. Gaston, a pro se plaintiff, was wearing extensive face coverings and carrying two bladed weapons while protesting. He was arrested under Florida statutes prohibiting masks intended to intimidate or conceal identity and the carrying of a concealed knife. Gaston sued under 42 U.S.C. §§ 1983, 1985 and Florida law, alleging (1) First Amendment retaliation, (2) malicious prosecution, (3) selective enforcement, (4) civil-rights conspiracy, (5) failure to train, and (6) state-law violations. The district court dismissed all federal claims and declined supplemental jurisdiction over the state claims. On appeal, the Eleventh Circuit affirmed in full.

Summary of the Judgment

The Eleventh Circuit, per curiam, reviewed the dismissal de novo and affirmed. Key holdings:

First Amendment Retaliation (42 U.S.C. § 1983): Probable cause to arrest bars a retaliation claim as a matter of law under Nieves v. Bartlett, 587 U.S. 391 (2019). Gaston failed the “Nieves exception” because he did not plead objective evidence showing that similarly situated individuals would not have been arrested.
Malicious Prosecution (§ 1983): Failed for lack of both probable cause and malice.
Selective Enforcement (Equal Protection): Gaston did not allege “similarly situated” comparators treated differently without rational basis.
Civil-Rights Conspiracy (§ 1985): Lacked allegations of class-based invidious discrimination.
Municipal Liability (Monell theory under § 1983): No unconstitutional custom or policy, nor deliberate indifference in training.
Supplemental Jurisdiction: Properly declined once all federal claims were dismissed.

Analysis

Precedents Cited

The court relied on a matrix of Supreme Court and Eleventh Circuit authorities:

Monell v. Department of Social Services, 436 U.S. 658 (1978) – Municipal “persons” liability under § 1983.
DeMartini v. Town of Gulf Stream, 942 F.3d 1277 (11th Cir. 2019) – Elements of a § 1983 retaliation claim.
Nieves v. Bartlett, 587 U.S. 391 (2019) – Probable cause bars retaliatory-arrest claims unless objective comparator evidence is pleaded.
Gonzalez v. Trevino, 602 U.S. 653 (2024) – Comparator need not be “virtually identical” but must be objective.
Gates v. Khokhar, 884 F.3d 1290 (11th Cir. 2018) – “Arguable probable cause” standard.
Harris v. Hixon, 102 F.4th 1120 (11th Cir. 2024) – Officers cannot disregard obvious exculpatory steps.
Wood v. Kesler, 323 F.3d 872 (11th Cir. 2003) / Butler v. Smith, 85 F.4th 1102 (11th Cir. 2023) – Malicious prosecution elements under § 1983.
Whren v. United States, 517 U.S. 806 (1996) – Remedy for selective enforcement under Equal Protection.
Village of Willowbrook v. Olech, 528 U.S. 562 (2000) – “Class of one” equal-protection standard.
Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010) – “Prima facie identical” requirement for comparators.
Childree v. UAP/GA AG CHEM, Inc., 92 F.3d 1140 (11th Cir. 1996) – § 1985 conspiracy elements, requiring class-based animus.
McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) / Grech v. Clayton County, 335 F.3d 1326 (11th Cir. 2003) – Monell standards for officially promulgated policy or custom.
Brown v. City of Fort Lauderdale, 923 F.2d 1474 (11th Cir. 1991) – Proof of widespread practice and notice to policymakers.
Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008) – Standard for declining supplemental jurisdiction under 28 U.S.C. § 1367.

Legal Reasoning

1. First Amendment Retaliation: Applying Nieves, the panel held that probable cause to arrest bars a retaliation claim unless the plaintiff pleads objective evidence that similarly situated persons would not have been arrested. Gaston’s general assertions (mask-wearers during COVID or Jan. 6 protesters in D.C.) fell short because they were not objective, locale-specific comparators under Gonzalez and Grider. The officers also had arguable probable cause to arrest under the Florida anti-mask and concealed-weapon statutes (Gates).

2. Malicious Prosecution: Without probable cause and malice, and given constitutional arguable probable cause, Gaston’s § 1983 malicious prosecution failed (Wood, Butler).

3. Selective Enforcement / Equal Protection: A “class of one” claim demands intentional differential treatment of “prima facie identical” comparators without rational basis (Olech, Grider). Gaston’s proffered groups did not satisfy this standard.

4. § 1985 Conspiracy: No allegations of race- or class-based animus (Childree).

5. Municipal Liability / Failure to Train: No unconstitutional policy or widespread custom, nor deliberate indifference to training needs (Monell, Grech, Brown).

6. Supplemental Jurisdiction: After proper dismissal of all federal claims, declining to exercise 28 U.S.C. § 1367 jurisdiction over state-law claims was an appropriate exercise of discretion (Romero).

Impact

This decision cements several guiding principles:

Probable cause—actual or “arguable”—remains an absolute bar to retaliatory-arrest claims unless precise, objective, jurisdiction-specific comparators are pleaded under the Nieves exception.
Pro se litigants must allege concrete comparator scenarios rather than broad analogies (e.g., mask-wearers generally).
Selective enforcement and “class of one” claims require strict comparator identity and lack of any rational basis.
§ 1985 conspiracy claims hinge on class-based discriminatory animus—not mere spite or irritation.
Monell claims demand proof of a formal policy or a longstanding, notorious custom known to policymakers.
District courts retain broad discretion to dismiss federal claims and relinquish supplemental jurisdiction over residual state claims.

Complex Concepts Simplified

Arguable Probable Cause: Even if probable cause is debatable, an officer is immune from civil liability if reasonable officers in the same situation could have believed probable cause existed (Gates).
Nieves Exception: Allows a retaliatory-arrest plaintiff to proceed if he shows, with objective evidence, that similarly situated people who did not engage in protected speech would not have been arrested (Nieves, Gonzalez).
Monell Liability: Municipalities can be sued under § 1983 only for unconstitutional rules, policies, or customs attributable to final policymakers—not for isolated acts by rogue employees.
Class of One Equal Protection: A plaintiff must show he was treated differently from an almost identical comparator and that there was no legitimate reason for the difference (Olech).

Conclusion

Angel E. Gaston v. City of Leesburg clarifies the rigorous standards for overcoming probable-cause immunity in First Amendment retaliation suits via the Nieves exception, underlines the necessity of well-pleaded, objective comparator evidence, and reaffirms settled law on malicious prosecution, selective enforcement, § 1985 conspiracies, Monell municipal liability, and supplemental jurisdiction. Going forward, litigants must furnish precise factual predicates to survive threshold dismissals in these contexts.