Neil Gorsuch

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.

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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."

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  1. “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.'”

    Worthy of memorization

    1. Indeed. I admit I am pleasantly surprised. All the same, this is small potatoes. We’ll see how he rules for the elites and oligarchs on important stuff.

      1. if you’re “pleasantly surprised” by this and other Gorsuch rulings so far it shows you didn’t know a damn thing about him in the first place.

  2. >>>cops could punish people who irk them by finding a legal reason to bust them

    see “reasonable suspicion” traffic stop.

    1. Yeah, no kidding. It’s pretty much gotten to the point that merely driving on the road is probable cause to pull you over for some reason.

      1. Don’t wanna get pulled over like a thug? Don’t have a dusty license plate or a faded headlight like a thug.

      2. #heyjeffhowisthatrapistimportthingyouwantedworkingforyou?

        1. He’s importing Trapists? They make good beer at least.

        2. What’s with the hashtag schtick? It doesn’t add anything to your trolling, it just makes it less legible.

      3. That is in fact the goal.

  3. Note that even according to the cops, it was Weight who assaulted Bartlett, not the other way around.

    There really ought to be a requirement in statutes for disorderly conduct that someone actually file a complaint about the conduct other than the police for it to be considered disorderly. And that resisting arrest be an allowable response when no legitimate cause for arrest exists. All the misinformation spread about the danger to law enforcement has had the effect of establishing them as petty tyrants and most of SCOTUS has proven perfectly willing to let abhorrent behavior continue.

    In my mind, it would be better that a more cops get hurt or die than than we continue to allow concerns about their safety to erode the freedoms of the general populace. They get compensated far too well for the little protection they currently provide.

    1. Good point. Although people call the police about some pretty dumb shit, so that’s still a pretty low bar. But better than the cops just making shit up.
      Agree with your final paragraph as well. That’s part of the job. We hire police to take risks so that other people don’t have to.

      1. The first duty of the police should be to keep the peace. When they escalate a situation, even if just by their presence, it should be on them, not the citizenry. The idea that anyone is ‘guilty’ for refusing to answer questions, allow a search, show papers, or otherwise incriminate themselves is an affront to liberty. Unless a complaint has been submitted and a warrant issued, cops who refuse to walk away from belligerent citizens who are not posing a direct threat should be disciplined. In this modern age, there is absolutely no reason a cop can’t snap a picture and mail a citation from the station.

        Same goes for traffic stops. They ‘detain’ you so they can check your record and make you frustrated enough to give them pretext to search you. All they should do is check your ID, snap a picture and send you on your way.

        It is my understanding that the military holds soldiers interacting with civilians in war zones to higher standards than the courts hold police in what is supposed to be the freest country in the world?

        1. Personal experience, rock pile: EVERY RoE was stricter than our police have, including Falluja (I wasn’t there, but I’ve seen the RoE).

    2. The idea that more cops need to die is absurd. That the job should be made more difficult by having a standard that second guesses them even more is also absurd. In the current political climate, white officers are already walking on eggshells any time a black suspect is involved. I recently whitnessed a black man who was given a traffic ticket come into court and verbally assault the veteran officer for giving him the ticket, then, when the judge very sincerely explained that it was the officers judgement call, and told him to pay the fine, he proceeded to go on a tyrade to the judge. Do you think he was held in contempt of court?

      If your proposed standard was adopted, it would only ensure that the ranks of police recruits would be further limited to the dregs of society along with thick-necked bullies who previously were most accomplished at handing out swirlies in the high school bathroom. That is what got us into this conundrum of police abuse of authority in the first place.

      1. So, you’re going to try and use traffic law as an example?

        Well, you DO understand that nearly all traffic laws are arbitrarily enforced, right? They are often used exclusively to punch another notch into ticket quotas, or to harass an innocent person, or to search for drugs, or to generate revenue.

        The cop and the traffic judge deserved FAR worse than a tirade. These are people who willingly enforce laws that exist for the sole purpose of benefiting the State, as opposed to the citizens. They are monsters. Things. Less than human. Good and worthwhile people do NOT do the things that modern police do.

        Fuck you. You’re a boot licking fucker, and you deserve to die of painful ass cancer.

        Have a nice day.

        1. The truth is it goes both ways… There are good cops who just try to do their job and more or less equally enforce the law… And there are dickhead cops.

          The question is what EXACT laws could we have in place to eliminate abuses, hold the dickheads in check, while still allowing decent ones to lay the smack down on shitheads when needed. It’s a pretty complicated cluster fuck if you’re really looking at it fairly. The cops in my town basically have their hands tied behind their backs when it comes to enforcing any laws or standards on the hordes of homeless druggies that live here now, because of the prog idiots that run the city… And believe me this has made it FAR worse actually living here than any supposed abuses would.

          1. Those restrictions are likely in place because of past abuses, so you’re living with the consequences of police abuse, not an alternative. Still want to keep their immunity?

            1. But most of it isn’t past ABUSES in a legitimate sense. Half of it is dumb shit that got passed after a single mistake made by a single cop.

              I’m in favor of punishing cops who make big mistakes… But the answer to problems like this isn’t to not allow the other cops to do their job. If you completely pull back on law enforcement your city turns into a shithole like the one I live in now. Seattle used to be a REALLY nice, REALLY clean big city. Now it’s fucking horrible. We’ve had one of the fastest growing crime rates in the whole country over the last 15 years, and the current policies will only make it worse.

              In short you don’t overcorrect when a mistake is made, you correct the right amount. Which leaves cops with the ability to lay the smack down on shitheads sometimes, but also face consequences when they act badly.

          2. Bullshit. You can choose to uphold a bad law, or you can choose to walk away. If you are ordered to do something morally wrong, you can quit and work somewhere else.

            Nobody is forcing people to perform evil acts. They choose this life, and they should suffer the consequences that will come to all evil people one day.

            1. What “bad laws?”

              Most people agree with most laws we have on the books! Us libertarians are against the drug war and whatever, but most people aren’t. They might want the amount of punishment tweaked, but they’re not against it in principle.

              And even for libertarians the other 95% of laws cops enforce are pretty acceptable too. Again, we might disagree with how harsh punishment should be, but not that somebody should get arrested for robbing somebody or whatever.

              In other words 99% of what cops do is acceptable to 99% of people at least in theory.

          3. Right vek – we need police with enough power to enforce law (preferably laws that are just) but not enough to abuse them.

            One law that would be of huge help would be police body cams, with people free, or perhaps if charged or via a reasonable fee, to obtain copies if they were there and in the video. That provides evidence of who’s behaving badly or not.

            Further, I recommend being respectful to the police, and everyone else. Bartlett appears to be missing that respect, and so have a lot of police.

            1. Pretty much. We do need to make a lot of laws more just… But ever since I got past my angsty fuck the police teenage years, I realize you need to have law enforcement doing their thing. Most of what most cops do isn’t horrible stuff, and with a few minor tweaks it wouldn’t be all that bad.

              I’m a big fan of body cameras. It backs the police up when dealing with shitheads, and it backs citizens up when dealing with shithead cops… Win win.

    3. The problem is that even with such a system, the reality of police is that they have deadly force, you don’t, and our system currently punishes you for resisting, even if you’re innocent of the underlying crime. No law or procedure will ever change the fact that in the moment, police can do whatever they want and we can’t. Even if police were consistently and strictly punished for abusing their authority, it wouldn’t change the fact that you have to obey in the interim and challenge them in court.

      If you want police behavior to change, citizens need to have a constitutional guarantee that they cannot be punished for defending themselves from an officer, up to and including killing them.

      1. And that’s why the intelligent person humors them, at least to a point. You can assert your rights, in a non shitheadish way, and try to get them crucified afterwards if they violate them. But getting all lippy, aggressive, or actively violent IS NOT the way to handle shit. Anybody who is too stupid to realize that, I simply don’t have a ton of sympathy for. Being assertive is different than yelling at them, talking shit, or being aggressive. You can be calm, composed, and assertive.

        1. But that’s Gorsuchs point: you can’t “crucify” them afterward, if they claim facts in dispute which would constitute an arrest able offense, even if their own facts describe police felonies instigating it.

          Remember in this case, according to the police, the police feloniously assaulted the man, and arrested him for disorderly conduct for being assaulted.

        2. Well, you may think it’s ok for the police to treat the unintelligent badly. I personally don’t accept that someone getting “lippy” with the police deserves whatever abuses of power come as a consequence of that. Rights aren’t just for “sympathetic” plaintiffs.

          1. Other than somebody making threats of violence verbally against cops, I don’t think the cops should retaliate with violence… But lots of people DO get physically aggressive with them, and at that point you’ve basically crossed a line that will get you your ass handed to you. If some guy gets right in YOUR face and is screaming at you from an inch away, or pushing you, or the type of shit dumb perps do all the time… What would you do?

            It’s a case by case thing, but in a lot of instances I think shitheads had it coming.

            1. “If some guy gets right in YOUR face and is screaming at you from an inch away”

              That’s what the cops say, but cops lie.

              “or pushing you”

              Even according to the cops’ own accounts, the _cop_ started the pushing.

              Gorsuch missed the really outrageous part of this decision – it assumed that the cops’ account was truthful, and therefore prevented the case from going to trial to determine the facts. If they were lying, there was no probable cause.

  4. “The case is a timely reminder that “conservative” justices can be more reliable defenders of civil liberties than “liberal” ones.”

    Well, since two of four “liberals”, versus one of five “conservatives,” voted “correctly” (as Jake and I would define the term), I’d say a course in remedial math might be in order for Reason folk.

    1. You are skiing the math wrong, assuming that people of different groups are equals.

      See all the conservatives were supposed to vote wrong. Gorsuch didn’t, so he gets a point. All the liberals were supposed to vote correctly, but two didn’t. That’s two more points for Gorsuch.

      3-0 conservatives!!

      1. Yeah I had to read the comments just to see how people responded to that math. Right-libertarianism is fascinating to me in its seemingly bottomless apologetics for the (pervasive) anti-libertarian, anti-change and anti-reason aspects of conservatism. What a strange comment. I mean, good for Gorsuch.

        1. I’m a right-libertarian… And so are almost all libertarians I’ve met IRL. Most libertarian organizations are dominated by left-libertarians, but I think a pursuing of the comments section, and real world experience shows they’re the rare breed.

          Conservatives have their flaws… But anybody who doesn’t see that leftists are 1,000 times the threat to freedom that conservatives are is trippin’. The truth is that when conservatives are willing to shit on peoples rights they’re usually in small ways, and also ways that aren’t completely batshit crazy from a pragmatic standpoint. Things that maintain standards, and actually make the world function in a decent manner. I think a little more chaos is acceptable, and indeed preferable… But commies want to shit on everything almost all the time.

          Total freedom to do as one pleases leads to shit that basically everybody would consider unacceptable… Some people might argue that a woman being topless in public is okay, even if it makes a good chunk of people uncomfortable… But who would argue it is acceptable for a man to stand on a sidewalk jerking off outside an elementary school? Still not a violation of the NAP IMO, but surely should not be tolerated. Cons may err on the side of caution sometimes, but their inclinations do not lead to nearly the same level of horrible shit as commies.

    2. Interesting rhetorical strategy, but reliability doesn’t necessarily refer to the number of justices, but the rationale and consistency. You’ll never see a “liberal” Gorsuch, thus the author’s point is valid.

    3. I think you misread the sentence. In this instance he isn’t using the the word can as a definitive but rather to indicate a possibility.
      Example of a similar usage is below

      “The case is a timely reminder that Porches can be cheaper than Fords.”

  5. And yet the left still says Gorsuch is a far-right conservative who will remove all civil liberties????? Gorsuch is probably one of the best justices we have had on the SCOTUS for a LONG time.

    1. Ever, not long time. But he’s young, so that could still change. He’s like a Thomas with a less statist view.

  6. If the Justices are worried about interfering with the arrest of guilty people, then how about this:

    Go ahead and let the cops arrest the guilty guy, but issue an injunction that they must also arrest every other suspect who they have probably cause to believe is breaking the law.

    Every broken taillight. Every speeder. If they overlook any case of lawbreaking, no matter how minor, send those cops to prison.

    This is actually offered more in the spirit of satire than of daring them to do this, but it *would* cure the discrimination problem (of only arresting people who belong to political, etc. minorities), and it would annoy the cops having to enforce every law.

    1. Plus imagine the looks on their faces when they have to arrest their criminal friends or risk arrest themselves.

      1. “their” = cops in general, not any specific cop – especially not the cops reading this comment, I don’t mean *you.*

    2. I agree with you, in general, but would not make it literally “every”. In my libertopia, laws which are not consistently enforced are null and void. Ticketing one out of a thousand speeders is not consistent; one must make a consistent effort to catch them all. Same with murder: some murder cases are harder to solve than others; but if cops make little or no effort to solve, say, gang killings or dead homeless people, then something is wrong.

      1. This is actually what I came here to say. Without the ability to objectively enforce the law in an even handed manner, the law is nothing but arbitrary and should be struck down by the courts.

        It doesn’t take much to realize how arbitrary these laws are when you can clearly see that they exist for the sole purpose of raking in cash from innocent people. I remember there being a police precinct that sued to keep the city from removing their ability to ticket drivers. They claimed that ticket revenue was too big a portion of their budget, and they couldn’t do their jobs without that money.

        When the people enforcing a law claim outright that the law exists for the purpose of theft, how can anybody in this country take it seriously? They’re thieves, kidnappers, and murderers. A gang, a mob, and fucking herd of bullies and monsters. Why does anybody allow them to continue in this manner?

    3. Also, didn’t somebody once say something about how the best way to get an unjust law repealed was by enforcing it vigorously?

      1. That has always been an opinion I believe in fully. If dumb laws were enforced 100% they would almost certainly be repealed in most cases.

    4. The constitution says pretty clearly that, in an arrest case like this, the protection is “speedy” and upfront operation of the criminal justice system. Holding the guy in jail for 24 hours to sober up wouldn’t have been the end of the world for him in a nation of actual inter-personal judgements. Nor was it unreasonable in the case of Sandra Bland. However, the fact that countless other private entities will choose to screen out potential liabilities by only employed / renting to / associating with people who have been arrested makes the stakes higher than the Constitution every envisioned. Can you imagine that because of this arrest, even if the charges were ultimately dropped, the guy could be prevented from coaching his kid’s football team, or chaperoning a field trip (I’m pretty sure even if he explained the circumstances of the arrest, they would block him… what’s in it for the organization take the risk?!)

    5. That’s how it works in Germany. Police are required to enforce the law upon complaint and the state is required to prosecute.

      There was a viral photo of a German trauma helicopter at an accident that had a parking ticket under the windshield wiper a few years ago. Someone complained and the cop had no choice but to issue the ticket.

  7. And if you go by muellers definition of obstruction, anybody can be arrested for obstruction by declaring their innocence. Even David French finally recognized that fact today and hes an avid anti trump libertarian.

    1. Never answer a question without your lawyer present.

      “I didn’t do it” is a factual statement, and can be grounds for obstruction if there is a credible argument it is false.

      “I am innocent” is a legal statement, and ostensibly cannot be grounds for an obstruction charge.

      They seem like they say the same thing, but to the legal weevil’s of the world, they are as different as black and white.

  8. Gorsuch could vote to censor the Sports Illustrated swimsuit edition and Sullum and Root would say ‘look how great Gorsuch is, he said one-pieces are ok, he just said you can wear bikinis’.

    1. ‘…can’t wear bikinis’ is what I meant.

  9. The majority was not blind to that danger…

    And yet..

    1. because FYTY

  10. I’m not a big Trump fan, but this appointment is by far the best thing of his presidency and he deserves kudos for it.

  11. […] Click here to view original story: Dissenting From a Decision Blocking a Retaliatory Arrest Claim, N… […]

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  13. This is a great article. Wondering why more is not done to stop all this crimes. Anyway just my thoughts.

  14. “The case is a timely reminder that “conservative” justices can be more reliable defenders of civil liberties than “liberal” ones.”

    I know SOMEBODY who will be getting fewer cocktail party invites going forward… 😉

    1. Well, what kind of person would go to a cocktail party where people who defend civil liberty aren’t welcomed? I wouldn’t want to mingle with them.

      1. In DC civil liberties are for pussies! But I mainly meant the fact that he would even consider that a conservative judge isn’t literally Hitler.

  15. I appreciate this piece, and admit that Gorsuch has certainly been interesting to watch. I believe he and Sotomayor have an interesting cross-section of shared opinions (taking the same side on a case), which can be fun to dissect.

    It’s too bad that you ended with this sentence

    The case is a timely reminder that ‘conservative’ justices can be more reliable defenders of civil liberties than ‘liberal’ ones.

    Two out of 4 liberals were on this side, and Gorsuch was one of 5 (or 4 if the Chief Justice isn’t sufficiently conservative for you) conservatives. Your overall point is well-taken, but perhaps improperly applied.

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  22. […] anyone can be arrested for something,” Justice Neil Gorsuch observed in a case the Supreme Court decided last month. Mike Chase, a lawyer who has been cataloging […]

  23. […] anyone can be arrested for something,” Justice Neil Gorsuch observed in a case the Supreme Court decided last month. Mike Chase, a lawyer who has been cataloging […]

  24. […] anyone can be arrested for something,” Justice Neil Gorsuch observed in a case the Supreme Court decided last month. Mike Chase, a lawyer who has been cataloging […]

  25. […] anyone can be arrested for something,” Justice Neil Gorsuch observed in a case the Supreme Court decided last month. Mike Chase, a lawyer who has been cataloging […]

  26. […] Rejoice – “Almost anyone can be arrested for something,” Justice Neil Gorsuch observed in a case the Supreme Court decided last month. Mike Chase, a lawyer who has […]

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