Dissenting From a Decision Blocking a Retaliatory Arrest Claim, Neil Gorsuch Notes That 'Almost Anyone Can Be Arrested for Something'

The Trump appointee warns that "little would be left of our First Amendment liberties" if cops could punish people who irk them by finding a legal reason to bust them.

Yesterday the Supreme Court ruled that when someone sues the police for violating his First Amendment rights by arresting him in retaliation for protected speech, he generally has to show there was no probable cause for the arrest. Six justices agreed with that conclusion, while three dissented, including Neil Gorsuch, whose opinion provides further evidence of how wrong his critics were to portray him as "a narrow-minded elitist who consistently votes in favor of corporations and the powerful." To the contrary, Gorsuch has proven, both as an appeals court judge and as a justice, that he is unusually sensitive to abuses of power and does not hesitate to stand up for "the little guy."

This case was brought by Russell Bartlett, who was charged with disorderly conduct and resisting arrest (two vague and highly malleable offenses) during the 2014 Arctic Man winter sports festival in the Hoodoo Mountains near Paxson, Alaska. The circumstances leading to Bartlett's arrest are a matter of dispute.

According to the police account, Bartlett intervened as Luis Nieves, a sergeant with the Alaska State Troopers, was asking a group of festival attendees to move their beer keg inside their RV to keep it away from minors. Nieves reported that "Bartlett began belligerently yelling to the RV owners that they should not speak with the police." Nieves said he "approached Bartlett to explain the situation, but Bartlett was highly intoxicated and yelled at him to leave."

A few minutes later, as Trooper Bryce Weight was grilling a teenager about whether he and his friends had been drinking, Bartlett allegedly "approached in an aggressive manner, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor." Weight reported that "Bartlett then stepped very close to him in a combative way, so Weight pushed him back." Nieves rushed over and immediately arrested Bartlett, and "when Bartlett was slow to comply with his orders, the officers forced him to the ground and threatened to tase him." Note that even according to the cops, it was Weight who assaulted Bartlett, not the other way around.

Bartlett's account differs on certain key details. He denies that he was drunk, belligerent, or yelling during his initial encounter with Nieves. To the contrary, "He claims it was Nieves who became aggressive when Bartlett refused to speak with him." He says that he was not aggressive with Weight either and stood close to the trooper only so could be heard over the loud background music. He adds that he was slow to comply with Nieves' orders because of a back injury, not because he was resisting arrest. And he claims that after the cops handcuffed him, Nieves said, "Bet you wished you would have talked to me now."

Maybe Bartlett was an angry drunk bent on causing trouble, or maybe Nieves and Weight abused their power to punish someone they felt was not sufficiently respectful of their authority. The question for the Supreme Court was whether Bartlett could pursue a claim against them under 42 USC 1983, which allows someone to seek damages when a police officer violates his constitutional rights "under color of any statute." In these circumstances, the majority concluded, the fact that Nieves and Weight had probable cause to arrest Bartlett was enough to preclude his claim.

Gorsuch disagreed. "History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively," he writes. "In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is 'one of the principal characteristics by which we distinguish a free nation.'"

The majority was not blind to that danger, saying probable cause might not be enough to defeat a Section 1983 claim in cases involving trivial offenses that would not ordinarily result in arrest. Writing for the majority, Chief Justice John Roberts gives the example of a vocal police critic who is arrested for jaywalking. And last year in Lozman v. Riviera Beach, the Court ruled that a local gadfly could sue for a First Amendment violation after he was arrested, per "official municipal policy," for not following procedural rules during a city council meeting.

But Gorsuch goes further, noting that "you will find no reference to the presence or absence of probable cause as a precondition or defense to any suit" under Section 1983. He finds the majority's discussion of common-law causes of action for false imprisonment and malicious prosecution in 1871, when Section 1983 was enacted, unpersuasive. "The point of this kind of claim isn't to guard against officers who lack lawful authority to make an arrest," he notes. "Rather, it's to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason."

Two justices who are usually described as part of the Court's "liberal" wing, Ruth Bader Ginsburg and Sonia Sotomayor, also dissented, agreeing that Bartlett's case should be allowed to continue. But two other members of that wing, Elena Kagan and Stephen Breyer, joined the majority in saying the motivation for arresting Bartlett should not be scrutinized as long as the cops' allegations were sufficient for probable cause. The case is a timely reminder that "conservative" justices can be more reliable defenders of civil liberties than "liberal" ones.

Gorsuch's dissent in Nieves v. Bartlett, Case Western law professor (and Volokh Conspiracy blogger) Jonathan Adler suggests, "should be read in conjunction with his opinions in cases concerning Native Americans, immigrants, and the regulatory state. [His] opinions show a skepticism of [government] power (and potential for abuse) across the board."