Retaliatory arrest
If an officer arrested you because of what you said, what you filmed, or a complaint you made, the arrest is a First Amendment claim under Section 1983 in addition to whatever Fourth Amendment claim the facts support. The rule that decides most of these cases is about probable cause: where the officer had it, the retaliation claim usually fails, unless you can show with objective evidence that people who did the same thing without the speech were not arrested. This page goes through the rule, the exception as the Supreme Court widened it in 2024, New York's right to record, the qualified immunity question after the Court's 2026 protester decision, and the clock.
A retaliatory arrest claim adds a question to a false arrest claim: not only whether the officer had cause, but why the officer acted. The arrest for filming, the arrest for the remark, the arrest that followed a CCRB complaint by a week: each is a claim that the officer used the power to arrest as a punishment for protected speech. The law makes the claim hard to win where there was probable cause, and the Supreme Court has spent the last seven years saying exactly how hard. This page states the rule as it stands in September 2026. The arrest itself, and the probable cause question, are on the false arrest page.
The claim, and the probable cause rule
Section 1983 (42 U.S.C. § 1983) gives a cause of action to any person deprived of a federal right by someone acting under color of state law, and the right here is the First Amendment's. The claim is that the officer arrested you in retaliation for protected speech: a remark, a recording, a complaint, a protest. The difficulty is that an arrest also has a Fourth Amendment answer, probable cause, and the Supreme Court has held that the Fourth Amendment answer usually ends the First Amendment claim too.
Nieves v. Bartlett
In Nieves v. Bartlett, 587 U.S. 391 (2019), the Court held that probable cause generally defeats a retaliatory arrest claim. An officer who had a lawful basis to arrest you is not liable for retaliation merely because the officer also disliked what you said. The Court carved out one exception: the claim survives where the 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." The classic case is the minor offense that is never enforced, enforced this once against the person who was talking back.
Gonzalez v. Trevino: what counts as objective evidence
The exception was read narrowly by some courts to require a specific comparator: a named person who did the same thing, without the speech, and was not arrested. In Gonzalez v. Trevino, 602 U.S. 653 (2024), the Court, per curiam, held that the Nieves exception is not limited to specific comparators. Objective evidence of another kind can suffice, such as evidence that no one has ever been arrested for the conduct in question. That turns the claim into a records case. How often does this department arrest anyone for this offense? What does its own data show? The arrest that stands alone in the records is the arrest the exception was written for.
Probable cause itself is judged the way it is in any arrest case: on the totality of the circumstances known to the officer (District of Columbia v. Wesby, 583 U.S. 48 (2018)), for any offense the officer knew of, not only the one announced (Devenpeck v. Alford, 543 U.S. 146 (2004)). Where there was no probable cause at all, the retaliation claim and the false arrest claim stand together and the Nieves rule does not apply.
Filming the police in New York
The most common retaliatory arrest in New York is the arrest for recording, and New York has a statute for it. Under New York Civil Rights Law § 79-p, in effect since July 14, 2020, a person not under arrest has the right to record law enforcement activity and to keep the recording. An officer may not prevent the recording, threaten you for it, order you to stop, or arrest you for it. The section gives a civil action for damages, including punitive damages and attorney's fees, with a three-year limit.
That claim is independent of the federal one. It does not turn on the Nieves rule; it turns on whether you were recording and what the officer did about it. An arrest for recording is both claims. And the recording itself, if it survived, is the evidence of both. Under the Right to Know Act (Local Law 54 of 2018), an NYPD officer who stops you must also give you a business card that tells you where to request body-worn camera footage, which shows the encounter from the other side. The evidence page explains how to request and preserve it.
Your recording is evidence. Treat it that way.
Do not delete it, edit it or post it before a lawyer has seen it. Back it up the same day. Write down who else was recording. Where the arrest followed a complaint rather than a recording, keep the complaint, the acknowledgment and the dates; the sequence is the proof. The first week page goes through the rest.
Qualified immunity, and the protester decision of 2026
The officer will raise qualified immunity, which shields an official unless the conduct violated a clearly established right "of which a reasonable person would have known" (Harlow v. Fitzgerald, 457 U.S. 800 (1982)). A court may decide that question first, without deciding whether the right was violated at all (Pearson v. Callahan, 555 U.S. 223 (2009)).
On March 23, 2026, in Zorn v. Linton, No. 25-297, 607 U.S. ___ (2026), the Supreme Court reversed the Second Circuit's denial of qualified immunity to a Vermont officer who used a rear wristlock on a passively resisting sit-in protester after warnings. The Court held, per curiam and 6 to 3, that no precedent placed the question "beyond debate," with Justices Sotomayor, Kagan and Jackson dissenting. It is a force case, not a retaliation case, and it is cited here for what it says about protest arrests generally: the right has to be clearly established in circumstances close to the ones the officer faced, and the Second Circuit, which covers New York, was the court reversed. The qualified immunity page goes through the doctrine and the pending bills.
Where the defense does not apply: an NYPD arrest, under city law
New York City's 2021 civil rights law creates a right of security against unreasonable search and seizure, enforceable against an NYPD employee and against the City as employer (N.Y.C. Admin. Code §§ 8-802, 8-803), and provides that qualified immunity "is not a defense to liability" (§ 8-804). The limitation period is three years (§ 8-806). An arrest is a seizure. The chapter does not speak of the First Amendment; it is construed consistently with the Fourth and Fourteenth Amendments and the state constitution (§ 8-807), so it carries the seizure claim, not the retaliation theory. For an NYPD arrest the two are pleaded together. The city law page explains what it changes.
The clock, the plea, and the criminal case
A retaliatory arrest claim is a claim about an arrest, and its clock runs like the false arrest claim's. The federal claim accrues when you were held under legal process, at arraignment or the like, or released; it does not wait for the criminal case, and Heck does not delay it (Wallace v. Kato, 549 U.S. 384 (2007)). In New York it then has three years (Owens v. Okure, 488 U.S. 235 (1989); N.Y. CPLR 214(5)) and needs no notice of claim (Felder v. Casey, 487 U.S. 131 (1988)). A state-law claim against the City of New York or another municipality needs a notice of claim within 90 days after the arrest (N.Y. Gen. Mun. Law § 50-e(1)(a)) and suit within one year and 90 days (§ 50-i(1)). The notice of claim page goes through the rule, and the deadline tool counts the dates.
The plea is the trap. Retaliatory arrests are usually charged as disorderly conduct, obstruction or resisting, and the offer to end the case with a plea to a violation comes early. Under Heck v. Humphrey, 512 U.S. 477 (1994), a Section 1983 damages claim that would necessarily imply the invalidity of a conviction is barred while the conviction stands, and a plea can have the same effect as a conviction for this purpose. Whether a retaliation claim contradicts a plea to the charged offense depends on what the claim would have to prove. That question has to be answered before the plea, with both lawyers in the room.
If a criminal charge from the arrest is still open, talk to your defense lawyer before describing the arrest, the recording or the officers to anyone, in writing or otherwise. The criminal case and civil case page explains why.
New Jersey and Florida
Nieves and Gonzalez apply in every state; Civil Rights Law § 79-p and the City's 2021 law are New York law and do not travel. In New Jersey the federal claim and the New Jersey Civil Rights Act claim have two years (N.J.S.A. 2A:14-2; 10:6-2), and a state tort claim against a public entity needs a Tort Claims Act notice within 90 days of accrual, a six-month wait, and suit within two years (N.J.S.A. 59:8-8); the notice does not apply to the Civil Rights Act claim (Owens v. Feigin, 194 N.J. 607 (2008)). In Florida the federal claim has four years (Fla. Stat. § 95.11(3)), and a state claim against the agency needs written notice within three years with a six-month wait before suit (Fla. Stat. § 768.28(6)), with damages against the government capped at $200,000 per person and $300,000 per incident (§ 768.28(5)(a)). The New Jersey and Florida pages go through each.
The arrest itself
Probable cause, the defenses, and why the New York clock runs before the criminal case ends.
False arrest →Stopped on the street
What an NYPD officer must tell you under the Right to Know Act, and the right to record.
Stop and frisk →Qualified immunity
"Clearly established," in plain English. The 2026 decisions, the pending bills, and what defeats the defense.
Qualified immunity →Common questions
I was arrested for disorderly conduct right after I talked back to the officer. Is that retaliation?
It may be, but the claim has to get past the probable cause rule. Under Nieves v. Bartlett, probable cause generally defeats a retaliatory arrest claim. The exception is objective evidence that you were arrested when otherwise similarly situated people who did the same thing without the speech were not. After Gonzalez v. Trevino that evidence does not have to be a named comparator; evidence that no one is ever arrested for that conduct can be enough. The footage and the department's own arrest practice are where the answer is.
Can I be arrested for filming the police in New York?
Not for the filming. Under Civil Rights Law 79-p, a person not under arrest has the right to record law enforcement activity and to keep the recording, and an officer may not prevent it, threaten you for it, order you to stop, or arrest you for it. The statute gives its own civil action for damages, including punitive damages and attorney's fees, with a three-year limit. An arrest for recording is both that claim and a retaliatory arrest claim.
What did the Supreme Court decide about protesters in 2026?
In Zorn v. Linton, decided March 23, 2026, the Court reversed the Second Circuit and granted qualified immunity to a Vermont officer who used a rear wristlock on a passively resisting sit-in protester after warnings, because no precedent placed the unlawfulness of that conduct beyond debate. It is a force case, not a retaliation case, but it states the standard every officer in a protest arrest will invoke: the right has to be clearly established in circumstances close to yours.
When does the clock start?
For the federal claims, when you were held under legal process, usually at arraignment, or when you were released, and in New York they then have three years. The New York notice of claim for a state-law claim against the City is due 90 days after the arrest. The right-to-record claim under Civil Rights Law 79-p has three years. None of these waits for the criminal case.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.