Justices Consider Whether Probable Cause Mutes Retaliatory Arrest Claims

WASHINGTON (CN) – The U.S. Supreme Court heard arguments on Monday in a case that questions whether a claim of retaliatory arrest can survive if officers had probable cause to make the arrest.

The justices agreed to hear the First Amendment case after ruling in favor of a Florida gadfly in a retaliatory arrest case last term.

In an 8-1 ruling, the justices held in June that the existence of probable cause for the arrest of a Fane Lozman, a repeated litigant before the Supreme Court, at a city council meeting in Riviera Beach, Florida did not bar his pursuit of a First Amendment retaliation claim against the body.

But the decision in Lozman’s favor was a narrow one, based on the municipality’s apparent retaliatory policy aimed specifically at Lozman.

“The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim,” wrote Justice Anthony Kennedy in one of his last opinions for the court.

“An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer,” he said.

The case before the justices on Monday, Nieves v. Bartlett, stems from the 2014 arrest of Russell Bartlett by Alaska state troopers Luis Nieves and Bryce Weight at Arctic Man, a festival at which revelers enjoy music, snowmobile racing, alcohol and other winter amusements near Summit Lake, Alaska.

As recounted in court filings, Nieves initially approached Bartlett to tell him to place a keg of beer back inside his motor home. Bartlett refused to cooperate, telling the officer that since no law had  been broken, he was not obligated to speak to police.

Bartlett and Nieves crossed paths again later the same day, when the officer came upon Tropper Weight as he attempted to question a minor believed to be under the influence of alcohol.

Bartlett was standing nearby, interupting Weight’s questions and encouraging the youth to avoid answering the troopers.

A video shot of the scene showed Bartlett standing very close to Weight. Eventually, the trooper placed his open palms on Bartlett’s chest to push him away and a scuffle ensued.

Nieves, who was nearby, jumped in to subdue Bartlett, who was eventually charged with disorderly conduct and resisting arrest.

Bartlett sued claiming his arrest was in retaliation for not speaking to Nieves the first time they interacted and for criticizing Weight later. The claim was dismissed. A federal judge found that even if Nieves admitted to arresting Bartlett for his refusal to speak to police, the man’s behavior was probable cause for the arrest.

The Ninth Circuit reversed the decision, saying a retaliatory arrest claim could be filed even if probable cause exists.

On Monday, Dario Borghesan, an attorney with the Alaska attorney general’s office, told justices that the Ninth Circuit’s ruling failed to consider the ramifications of its decision.

Being able to determine that a police officer acted with true animus when arresting someone is inherently difficult, if not impossible, short of verifiable evidence, Borghesan argued.

And such evidence is hard to come by, he said.

If the court ruled in Bartlett’s favor, retaliatory arrest claims would clog the courts and worse, hamper the police’s ability to operate decisively, he said.

“The court should recognize that police officers arrest based on the course of conduct and they aren’t legal technicians,” he said.

Probable cause should “apply for the stated crime of arrest or crimes charged or crimes closely related to those crimes,” he said.

In Bartlett’s case, there was reason to believe he posed a danger to the officers, regardless of what was said, Borghesan  added.

But according to Zane Wilson, who was representing Bartlett, the arrest ran directly afoul of the Supreme Court’s 1987 ruling in City of Houston vs. Hill.

In City of Houston, the court found that the right to criticize the police is what “distinguishes between a police state and a free country,” Wilson said.

Justice Elena Kagan acknowledged this, but  asked Wilson to consider the paradigm Bartlett’s case presents.

“Whether it’s resisting arrest or disorderly conduct, there’s likely to be speech involved in these problematic encounters where we think it’s possible that the police officer should arrest the person in order to prevent greater damage,” Kagan said. “You need to prove that but for your speech, you would not have been arrested.”

Wilson agreed with Kagan, but added: “The only thing a police officer needs to be concerned about is to focus on enforcing the law. As long as [he] remains loyal to enforcing the law, the situation takes care of itself.”

Chief Justice John Roberts did not appear convinced.

“That’s a very cavalier assertion,” he said.

“[What we are] proposing is  that the court view probable cause as a significant factor but not necessarily a controlling factor in whether or not you can state a First Amendment retaliation case. And that allows the court to stay focused on the truth … and the same time get to the bottom of these cases in an efficient manner,” Wilson said.

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