Daniel and Shatina Grady were arrested during a late-night shooting investigation in Ypsilanti Township, Michigan, after they approached a police perimeter around a suspected shooter's home and refused repeated commands to step back while questioning the officers' authority. The Gradys filed a federal civil rights lawsuit alleging that their arrests were retaliatory in violation of the First Amendment. The district court granted summary judgment to the officers on most claims but denied it on the First Amendment retaliation claim, reasoning that the Gradys satisfied the Nieves exception because other onlookers who were filming but not criticizing the police were not arrested. The officers appealed, arguing that the district court erred in finding the comparators similarly situated and that they were entitled to qualified immunity.
The Sixth Circuit began by reaffirming the Supreme Court's framework in Nieves v. Bartlett, which establishes that the presence of probable cause generally defeats a retaliatory arrest claim. The court explained that while a narrow exception exists for cases where a plaintiff presents objective evidence that they were arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been, this exception is slim. The court analyzed the Gradys' claim under two theories: retaliation for filming and retaliation for critical speech. Regarding the filming theory, the court noted that the cited comparators—the neighbors across the street—were also filming, so they did not fit the exception's requirement of being individuals not engaged in the same sort of protected speech. Regarding the critical speech theory, the court found that the district court's comparison was flawed. The Gradys had entered the police perimeter and defied over a dozen lawful commands to back up, conduct that provided probable cause for their arrest under Michigan law. In contrast, the neighbors remained well outside the perimeter, received no commands, and did not engage in the same conduct that created probable cause. The court held that to be similarly situated, non-arrested persons must have engaged in similar conduct to that which led to the claimant's arrest. Because the neighbors did not engage in the same conduct, their non-arrest did not prove that the Gradys were treated differently based on their speech. Consequently, the Gradys failed to satisfy the Nieves exception, and the general rule that probable cause defeats the claim applied.
The decision reverses the district court's denial of qualified immunity, meaning the officers are shielded from liability for the retaliatory arrest claim. The case is remanded for further proceedings consistent with the opinion, which likely results in the dismissal of the First Amendment claim. The ruling clarifies that the Nieves exception requires a strict comparison of conduct, ensuring that individuals who defy police orders and create probable cause cannot claim retaliation simply because law-abiding bystanders nearby were not arrested.