Free Speech

Supreme Court Trying Again on the First Amendment Retaliatory Arrest Question

The question that the Court didn't resolve in Lozman v. Riviera-Beach is back, in another case on which the Supreme Court just granted review.

|The Volokh Conspiracy |

This past Term's Lozman v. Riviera-Beach was expected to resolve a hugely important question: Can someone sue for retaliatory arrest if he there was probable cause to arrest him for some fairly petty crime, but there's lots of reason to think that he wouldn't have been arrested if it weren't for his past constitutionally protected speech? The Court resolved the case on very narrow grounds, limited to the rare cases where plaintiff can show a municipal policy of going after him because of his speech. But the Court just agreed to hear a new case, Nieves v. Bartlett, that involves the broader issue; the Court will presumably decide the question this coming year. Here are the facts of the case as described in the state's petition for certiorari:

Every spring, thousands of extreme skiers, snowmobilers, and spectators gather in the remote Hoodoo Mountains of interior Alaska for Arctic Man, a multi-day festival centered around a high-speed ski and snowmobile race. Campers congregate at night to drink and party, and rampant alcohol use compounds safety concerns at the event..

On the last day of Arctic Man in 2014, Troopers Luis Nieves and Bryce Weight were on duty, patrolling a large outdoor party where minors appeared to be drinking alcohol. Nieves encountered respondent Russell Bartlett at the party and attempted to speak with him, but Bartlett declined to talk to Nieves. Meanwhile, Trooper Weight spotted a minor who appeared to be drinking alcohol and began speaking to him at the edge of the crowd. Bartlett marched up to Weight, loudly demanding that Weight stop talking to the minor.

The district court, reviewing video footage of the incident, found that "Trooper Weight, Mr. Bartlett, and the minor [were] standing very close together exchanging words" and that "Bartlett's right hand was at roughly shoulder height within inches of Trooper Weight's face." The 5?9?, 240-pound Bartlett, who at the time of the incident was too intoxicated to drive, later maintained that his close proximity to Trooper Weight and loud voice were appropriate given the volume of music at the party, but Trooper Weight viewed Bartlett's "escalating voice, his look of anger, [and] his body language" as "hostile" "pre-assault indicators." To create a safe space for himself, Trooper Weight placed his open palms on Bartlett's chest and pushed him back..

Trooper Nieves, believing that Bartlett posed a danger to Weight, ran to help. Following a struggle, the troopers were able to subdue and arrest Bartlett.

He was released without injury after a few hours in the "drunk tank." Bartlett was charged with disorderly conduct and resisting arrest. The prosecution later dismissed the case for budgetary reasons, but the assigned prosecutor stated to the district court that he believed probable cause existed to charge Bartlett for disorderly conduct, resisting arrest, and assault.

Bartlett sued Troopers Weight and Nieves, asserting [among other things] false arrest and imprisonment … [and] retaliatory arrest …. On the false arrest and imprisonment claims, the [district] court ruled there was probable cause to arrest Bartlett for harassment, so the officers were entitled to summary judgment. The court ruled that the existence of probable cause also barred respondent's First Amendment retaliatory-arrest claim, noting that this Court "has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause." …

The Ninth Circuit affirmed on all claims except for retaliatory arrest. The appellate court ruled that the troopers had probable cause to arrest Bartlett for assault, disorderly conduct, harassment, and resisting arrest. Nevertheless, the court reiterated its earlier holding in Ford v. City of Yakima, 706 F.3d 1188, 1196 (9th Cir. 2013), that the existence of probable cause for an arrest does not bar a plaintiff's claim that the arrest was retaliatory in violation of the First Amendment. Pointing to respondent's allegation (uncorroborated by other witness testimony, audio or video recording) that Trooper Nieves said after the arrest, "Bet you wish you would have talked to me now," the court ruled that a jury might be persuaded that Bartlett was arrested for his earlier refusal to assist with the investigation, rather than for his harassing and belligerent conduct. The court thus reversed the grant of summary judgment on the retaliatory-arrest claim and remanded for trial….

NEXT: Sadly, Ross Ulbricht's Case Will Not Be Heard by the Supreme Court

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  1. To create a safe space for himself, Trooper Weight placed his open palms on Bartlett’s chest and pushed him back.

    A jury might also be persuaded that Trooper Weight committed assault on Bartlett.

  2. This seems a very poor vehicle to decide the question, and I think it’s likely the Supreme Court will reverse the 9th Circuit and find for the police officers.

    The problem here was that Mr. Bartlett wasn’t engaging in any sort of political advocacy here; rather, his behavior (if the police officers are believed) suggested he was drunk and disorderly.

    To the extent he has a First Amendment claim at all, it is that the First Amendment protects his behavior from being covered by the charges against him, a standard First Amendment Claim. If there was probable cause for arrest, than his behavior wasn’t protected by the First Amendment.

    I just don’t see a basis for a retaliatory arrest claim.

    I think the case is being selected because Mr. Nieves is a sympathetic defendant. Mr. Bartlett is not a sympathetic plaintiff. Indeed, this case could be perceived as an illustration of the sort of challenges that could clog the courts following the most trivial of arrests if claims like Mr. Bartlett’s were allowed to proceed.

    Indeed, if Mr. Bartlett’s claim succeeds, lawyers might well advise their clients to angrily confront the police at every possible occasion. People would have a strong disincentive to quietly comply with police orders, since doing so would lose the retaliatory arrest claim arrestees would be entitled to if they were only savvy enough to be louder and more insolent.

    1. “I think the case is being selected because Mr. Nieves is a sympathetic defendant.”

      Yup. I fear that this case was selected precisely so that they can rule that probable cause justifies even open and obvious retaliation.

      E.g. “stop criciticizing me or I’ll get my dog here to bark probable cause”.

    2. While I agree with much of your comment, paragraph 2 is just wrong.

      1. The First Amendment is not restricted to political advocacy.
      2. Drunk and disorderly is not incompatible with political advocacy. It is possible that Bartlett was both.

  3. It’s about time the Court permanently outlawed the unacceptable pseudo-legal practice of punishing people for “contempt of cop.” This is the case that could do it, if the court is willing to do its job.

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