Plaintiff's First Amendment rights were not violated during her arrest because her hostile and confrontational language, although protected, was in conjunction with her aggressive and confrontational behavior.

The plaintiff's retaliation claim under the First Amendment failed as a matter of law as the record supported the district court's conclusion that it was the plaintiff's "aggressive and confrontational behavior," not her "hostile and confrontational language"—which is protected under the First Amendment—that led to her arrest, despite the fact that the plaintiff was arrested a short time after making her remarks. Additionally, the plaintiff's due process claims failed because the Fifth Amendment only applies to federal officials, and the arresting officer is a state official. Further, any analysis under the Fourteenth Amendment was inappropriate because her claims of excessive force, false arrest and malicious prosecution were cognizable under the Fourth Amendment. In addition, the Eighth Amendment did not apply to the plaintiff as the alleged constitutional violations of the plaintiff occurred prior to, and during, her arrest. As the officer did not cause any constitutional harm, there could be no liability against the municipal defendants.

Case Law Alerts, 3rd Quarter 2013