Someone starts recording a traffic stop from across the street. An officer tells them to leave. They stay, keep filming, say something pointed. Within a minute they are in handcuffs and charged with obstruction. The charge is later dismissed.
Is that a First Amendment case? Usually the answer turns on a question that has nothing to do with the First Amendment: was there probable cause for the arrest?
The rule: probable cause generally ends it
In Nieves v. Bartlett, 587 U.S. 391 (2019), the Supreme Court held that “[t]he plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.” Id. at 402. The reasoning was evidentiary rather than doctrinal. Quoting an earlier case, the Court observed that “[l]ike retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case,” and reasoned that its absence “will — as in retaliatory prosecution cases — generally provide weighty evidence that the officer’s animus caused the arrest, whereas the presence of probable cause will suggest the opposite.”
The consequence is blunt. If the officer had probable cause to arrest for something — and Minnesota, like every state, has a long menu of low-level offenses — the claim ordinarily fails no matter what the officer said or intended.
The exception, stated precisely
Nieves carved out one qualification, and its scope matters more than anything else in this area. The Court held “that the no-probable-cause requirement should not apply when a plaintiff presents 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. It explained the qualification was warranted “for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Id. at 406.
Two limits are built into that sentence. The evidence must be objective — “[b]ecause this inquiry is objective, the statements and motivations of the particular arresting officer are ‘irrelevant’ at this stage.” And the comparison is to people “not engaged in the same sort of protected speech” who were not arrested for the same conduct.
In Gonzalez v. Trevino, No. 22-1025 (U.S. June 20, 2024) (per curiam), the Court policed the other boundary. The Fifth Circuit had required “comparative evidence” of “otherwise similarly situated individuals who engaged in the same criminal conduct but were not arrested.” That was too much: “Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The plaintiff there had surveyed a decade of county charging data showing the anti-tampering statute she was charged under had never been used for conduct like hers, and the Court explained that “[t]he 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.’”
So the exception is narrow but not hyper-technical. Statistical or systemic evidence that a charge is essentially never brought for this conduct can qualify. An affidavit about what the officer said cannot.
What happens if you clear the probable-cause hurdle
Clearing it is not winning. As Nieves put it, quoting Lozman v. Riviera Beach, if the plaintiff establishes the absence of probable cause, “then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.”
The Eighth Circuit adds a layer: arguable probable cause
Minnesota sits in the Eighth Circuit, and the Eighth Circuit’s formulation is more demanding than Nieves alone.
In Hoyland v. McMenomy, 869 F.3d 644 (8th Cir. 2017) — a Rosemount, Minnesota case — the court said that “[u]nder Eighth Circuit precedent there are four parts to a First Amendment retaliatory arrest claim brought under § 1983,” citing Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014). The plaintiff must show: “(1) ‘he engaged in a protected activity;’ (2) ‘the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity;’ (3) ‘the adverse action was motivated at least in part by the exercise of the protected activity;’ and (4) ‘lack of probable cause or arguable probable cause.’”
Those last three words do real work. Arguable probable cause is the qualified-immunity standard: as Peterson put it, quoting circuit precedent, “[a]rguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.” An officer who was wrong about probable cause, but not unreasonably wrong, still defeats the claim. That is a wider defense than Nieves describes, and it is the one a Minnesota plaintiff actually faces.
Peterson itself illustrates the practical response. The court held the officer was entitled to qualified immunity on the retaliatory arrest claim because he had at least arguable probable cause — but the plaintiff’s separate claim that the officer pepper sprayed him in retaliation for criticizing him and asking for his badge number was a different adverse action, and the defendants did not deny that “criticizing a police officer and asking for his badge number is protected speech under the First Amendment.” When the arrest is protected by arguable probable cause, look for the adverse action that is not the arrest.
Where Minnesota law decides the case
Because everything runs through probable cause, the operative question in most Minnesota cases is what the charging statute actually prohibits. The recurring charge is obstruction under Minn. Stat. § 609.50, subd. 1(2), which reaches whoever intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties.”
The Minnesota Supreme Court read that language narrowly in State v. Krawsky, 426 N.W.2d 875 (Minn. 1988). The statute “is directed solely at physical acts,” id. at 877, and while it “may be used to punish ‘fighting words’ or any other words that by themselves have the effect of physically obstructing or interfering with a police officer in the performance of his duties,” it “does not apply to ordinary verbal criticism directed at a police officer even while the officer is performing his official duties and does not apply to the mere act of interrupting an officer, even intentionally.” Id. at 877–78.
Hoyland is what that looks like applied. A man woke to find officers with guns drawn in his driveway, picked up a cell phone to record, stood in his own doorway 30 to 40 feet away, and shouted criticism at the officers while trying to tell them his wife was disabled. An officer shouted “Drop the camera!” He was arrested for obstruction about thirty seconds later; the charge was dismissed for lack of probable cause. The Eighth Circuit held “that, under Minnesota law, it was not objectively reasonable for these officers to believe they had probable cause to arrest Hoyland for obstruction,” observing that “[n]owhere in Minnesota law does mere physical presence at a distance constitute obstruction.” Because the officers lacked probable cause or arguable probable cause, they were denied qualified immunity on the First Amendment claim as well.
That is the through-line. In Minnesota, a retaliatory-arrest case is usually won or lost on a state-law question about the scope of the obstruction statute, and Krawsky’s “solely at physical acts” limit is the most valuable sentence a plaintiff has.
Recording the police: an open question in the Eighth Circuit
Most circuits have recognized a First Amendment right to record police in public. The Eighth Circuit’s position is less settled, and anyone writing confidently about it is overstating.
In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court affirmed the denial of qualified immunity to an officer who stopped, frisked, and handcuffed a jogger who had paused to watch a traffic stop from thirty or forty feet away. The court framed the right in Fourth Amendment terms — the “clearly established right to watch police-citizen interactions at a distance and without interfering” — and added: “Every circuit court to have considered the question has held that a person has the right to record police activity in public. … This robust consensus of cases of persuasive authority suggests that, if the constitution protects one who records police activity, then surely it protects one who merely observes it—a necessary prerequisite to recording.” Id. at 1090.
Three years later, in Molina v. City of St. Louis, 59 F.4th 334 (8th Cir. 2023), cert. denied sub nom. Molina v. Book, 144 S. Ct. 1000 (2024), a panel held that “observing and recording police-citizen interactions was not a clearly established First Amendment right in 2015,” and explained in a footnote that “[i]t is not beyond the realm of possibility that a First Amendment right to observe police exists, but our Fourth Amendment cases like Walker and Chestnut do not clearly establish it.” Id. at 340 & n.2. A dissenting opinion argued at length that Chestnut had in fact held such a right clearly established.
The practical takeaway is not that recording is unprotected. It is that in this circuit a plaintiff should not stake a case on the First Amendment recording theory alone. The Fourth Amendment theory recognized in Chestnut — an unlawful seizure of a non-interfering observer — is the sturdier ground, and it does not depend on resolving the First Amendment question. Qualified immunity is what makes that distinction decisive; see what “clearly established” actually requires and the courthouse door is narrowing.
What to do with all of this
Three practical points follow.
The probable-cause record is the case. Everything the arresting agency wrote down about why the arrest happened, what offense was charged, and how the charge resolved is worth having before anyone files anything. Minnesota’s Data Practices Act supplies most of it without a lawsuit — see using chapter 13 to build a case — and body-worn camera footage has a ninety-day retention floor that starts running immediately, covered in Minnesota body-camera data under § 13.825.
Comparator evidence is worth looking for early. After Gonzalez, evidence that an agency essentially never arrests for this conduct — charging data, citation records, the agency’s own statistics — can satisfy the Nieves exception even without an identifiable individual who was let go.
Separate the adverse actions. The arrest may be protected by arguable probable cause while a different act — force, a seizure of a phone, a threat — is not.
Retaliatory arrest and false arrest are close cousins and are frequently pleaded together; the Fourth Amendment side is taken up in false arrest and probable cause in Minnesota.
Madgett Law, LLC litigates civil rights and police misconduct claims in Minnesota state and federal court. If you were arrested after recording or criticizing a police officer, send us a message or call 612-470-6529.
Sources: Nieves v. Bartlett, 587 U.S. 391 (2019) (at 402, the plead-and-prove requirement; at 406, the discretion rationale for the qualification; at 407, the objective-evidence exception and the irrelevance of the officer’s statements and motivations; and the Mt. Healthy framework that applies once the absence of probable cause is shown); Gonzalez v. Trevino, No. 22-1025 (U.S. June 20, 2024) (per curiam) (rejecting a requirement of “virtually identical and identifiable comparators”; objectivity as the only express limit on the evidence); Hoyland v. McMenomy, 869 F.3d 644 (8th Cir. 2017) (four-element Eighth Circuit retaliatory-arrest test including “lack of probable cause or arguable probable cause”; holding that under Minnesota law it was not objectively reasonable to believe probable cause existed to arrest for obstruction; denial of qualified immunity on the First Amendment claim); Peterson v. Kopp, 754 F.3d 594 (8th Cir. 2014) (at 602, the elements of a First Amendment retaliation claim, as pin-cited by Hoyland; elsewhere in the opinion, the definition of arguable probable cause quoted from Ulrich v. Pope County, the concession that criticizing an officer and asking for a badge number is protected speech, and the treatment of the retaliatory-pepper-spray claim as distinct from the retaliatory-arrest claim); Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020) (Fourth Amendment right to watch police-citizen interactions at a distance and without interfering; consensus on the right to record); Molina v. City of St. Louis, 59 F.4th 334, 340 & n.2 (8th Cir. 2023), cert. denied sub nom. Molina v. Book, 144 S. Ct. 1000 (2024) (no clearly established First Amendment right to observe or record police in 2015); State v. Krawsky, 426 N.W.2d 875, 877–78 (Minn. 1988) (obstruction statute “directed solely at physical acts”; inapplicable to ordinary verbal criticism or to merely interrupting an officer); Minn. Stat. § 609.50, subd. 1(2) (Minnesota Office of the Revisor of Statutes).
This article is general legal information about Minnesota and Eighth Circuit law, not legal advice, and reading it does not create an attorney–client relationship. Whether any particular arrest was supported by probable cause is a fact-specific question. No outcome is promised or implied.