First Amendment retaliatory arrest claim under 42 USC § 1983; Nieves v Bartlett; “Probable cause” to arrest; Assaulting, resisting, or obstructing police officers under MCL 750.81d(1); The “failure-to-comply” theory of obstruction; Whether the Nieves exception applied; Whether comparators were similarly situated to plaintiffs; “Objective evidence”; Whether there was any evidentiary basis for “filming-based animus” under the Nieves exception; “Critical-speech” theory of retaliation

[This appeal was from the ED-MI.] The court held that plaintiffs-Gradys did not establish their First Amendment retaliatory arrest claim where (1) probable cause existed for their arrest and (2) they did not provide “objective evidence” of similarly situated comparators, as required under the Nieves exception. Defendants police officers-Pearson and Cratsenburg responded to a shooting incident. The Gradys (Daniel and Shatina) were at the scene and refused the officers’ repeated orders to step back from the investigatory perimeter, questioning their authority. The situation eventually ended with plaintiffs being arrested and charged with assaulting, resisting, or obstructing the officers under MCL 750.81d(1). They were acquitted. In this case, they alleged several claims, including First Amendment retaliation against Pearson and Cratsenburg. The district court ruled that the officers had probable cause to arrest plaintiffs under the failure-to-comply theory of obstruction pursuant to the Michigan statute, and plaintiffs did not challenge that ruling on appeal. Under the Nievest framework, “the presence of probable cause ‘generally defeat[s]’ a First Amendment claim of retaliatory arrest.” But Nieves contains a “‘narrow’” exception where “‘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.’” The district court found this exception applied. The court disagreed that the “proffered comparators permit the Gradys’ retaliation claim to proceed.” It noted that the only comparators they offered were neighbors who stood across the street from where the incident took place. There was no evidentiary support for “filming-based animus” because the neighbors were also filming the scene. The “critical-speech” theory of retaliation also failed given “several differences between” the neighbors and plaintiffs. The neighbors “stood outside the officers’ perimeter and never received a single order.” In contrast, “the Gradys walked within the perimeter to a point closer to the target house than any other bystander, and [they] ignored over a dozen lawful commands to step back.” Reversed and remanded.