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By: Wes Jackson
Imagine you commit a minor crime and an officer approaches you. The interaction goes south when you call the officer a “pig” and remind him that your tax dollars pay his salary. He then arrests you. Were your constitutional rights violated?
That’s the question the Supreme Court considered Monday, November 26, 2018 when it heard oral arguments in Nieves v. Bartlett. In Nieves, two Alaska State Troopers were patrolling a multi-day ski and snowmobile festival when they decided to investigate some underage drinking. Bartlett, who was intoxicated, intervened and confronted the troopers. The officers arrested Bartlett and put him in a “drunk tank.” He was later released and charged with disorderly conduct and resisting arrest. The state declined to prosecute the charges due to budgetary reasons. Bartlett sued, alleging his arrest was retaliatory because he refused to assist the officers in their investigation of the minors drinking alcohol.
Retaliatory arrest claims, like the one in Nieves, occur at the intersection of the First and Fourth Amendments: the presence of probable cause bars a Fourth Amendment claim for false arrest, but the circuits are split as to whether probable cause will also bar a First Amendment claim for retaliatory arrest arising from the same incident. Those circuits applying the probable cause bar to retaliatory arrest claims employ a bright-line objective standard that protects the officer from protracted litigation or trial where it is clear (or even arguable) that a reasonable officer could believe the arrestee had committed a crime. Rejecting the probable cause bar to retaliatory arrest claims could subject officers to months or years of litigation probing their subjective intent behind making an arrest—i.e., did the officer arrest the plaintiff for his crime or his speech?
At the Nieves oral argument, the justices sought to find a balance between protecting First Amendment rights while also giving law enforcement officers enough cover to act decisively and make arrests in fast-paced situations. On one hand, Justice Kagan noted the concern that officers might use minor crimes as a pretext to arrest for speech they disagree with, stating “there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” On the other hand, Justice Breyer and other justices noted the obvious concern with the chilling effect that would accompany the possibility of officers being haled into court every time they arrest someone who hurls an insult—officers could be to hesitant to make otherwise appropriate arrests.
One possible solution the justices entertained was to keep the probable cause bar for retaliatory arrests, but to limit its application to situations where there was probable cause for the charge on which the officer made the arrest or other charges upon which the arrestee was soon indicted. Such a solution would keep the probable cause bar for retaliatory arrests but prevent officers from concocting post hoc justifications for the arrest months or years later in a civil rights lawsuit.
The Court should issue an opinion in Nieves v. Bartlett in the coming months. If you have any questions about this case or retaliatory arrest claims more generally, please contact Wes Jackson at [email protected].