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Volokh Conspiracy

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.


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….