WASHINGTON (CN) – A festival goer who says his cheeky confrontation with police got him arrested on trumped-up charges lost his case Tuesday at the Supreme Court.
Finding that Sergeant Luis Nieves and Trooper Bryce Weight had probable cause to arrest Russell Bartlett, the Supreme Court reversed a decision by the Ninth Circuit that said Bartlett still had a case for retaliatory arrest.
The skirmish erupted five years ago in Alaska’s remote Hoodoo Mountains where upwards of 10,000 people gather every year for a weeklong winter sports festival called Arctic Man.
In an area where the population of nearby Paxson tops out at 40 people, “the event poses special challenges for law enforcement,” today’s lead opinion states.
“Snowmobiles, alcohol, and freezing temperatures do not always mix well, and officers spend much of the week responding to snowmobile crashes, breaking up fights, and policing underage drinking,” Chief Justice John Roberts wrote for the majority. “Given the remote location of the event, Alaska flies in additional officers from around the state to provide support. Still, the number of police remains limited. Even during the busiest periods of the event, only six to eight officers are on patrol at a time.”
Nieves and Bartlett first crossed paths at about 1:30 a.m. on the last night of Arctic Man 2014. Nieves had advised some partygoers to move their beer keg inside to keep it out of the hands of underage drinkers, and Bartlett apparently aggravated the officer by saying no one had to talk to him because no law was being broken.
It is disputed whether Bartlett was intoxicated at the time, or who was the aggressor in the situation. Some minutes later, Bartlett intervened as Trooper Weight questioned another minor about underage drinking.
Though Weight says Bartlett got close to him in a combative way, Bartlett says he was just trying to make himself heard over loud music in the background.
A physical confrontation ensued, at which point Nieves rushed over and slapped handcuffs on Bartlett.
After Bartlett sued the officers for retaliatory arrest, a federal judge dismissed the suit on the basis of probable cause but the Ninth Circuit reinstated the case in 2017.
Roberts said Tuesday that dismissal was the correct result, however, based on the lack of evidence about what motivated Trooper Weight.
“The only evidence of retaliatory animus identified by the Ninth Circuit was Bartlett’s affidavit stating that Sergeant Nieves said ‘bet you wish you would have talked to me now,’” Roberts wrote (emphasis in original). “But that allegation about Nieves says nothing about what motivated Weight, who had no knowledge of Bartlett’s prior run-in with Nieves. In any event, Bartlett’s claim against both officers cannot succeed because they had probable cause to arrest him.”
Justice Sonia Sotomayor dissented in full.
“By rejecting direct evidence of unconstitutional motives in favor of more convoluted comparative proof, the majority’s standard proposes to ration First Amendment protection in an illogical manner,” she wrote. “And those arbitrary legal results in turn will breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence — and, in some cases, openly and unabashedly. These are costs the court should not tolerate.”
Justice Ruth Bader Ginsburg dissented in part as well, but she said she would reverse only the judgment pertaining to Trooper Weight.
“As to Sergeant Nieves, there is some evidence of animus in Nieves’ statement, ‘bet you wish you would have talked to me now,’ but perhaps not enough to survive summary judgment,” Ginsburg wrote. “In any event, I would not use this thin case to state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”
While Justices Stephen Breyer, Samuel Alito, Elena Kagan and Brett Kavanaugh joined the lead opinion in full, Justice Clarence Thomas took exception with a section where Roberts delved into the risk of officers exploiting arrest power as a means of suppressing speech.
Roberts cited the issue of jaywalking as an example of what he called “the no-probable-cause requirement.”
“If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest,” Roberts wrote.
“Because probable cause does little to prove or disprove the causal connection between animus and injury” in such a case, Roberts said a plaintiff need not grapple with whether probable cause supported the decision to press charges.
Thomas explained his qualm with this holding in an opinion concurring in judgment.
“I do not agree that ‘a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so,’” Thomas wrote. “That qualification has no basis in either the common law or our First Amendment precedents.”
Justice Neil Gorsuch also complained about the court’s handling of the no-probable-cause requirement.
“Rather than attempt to sort out precisely when and how probable cause plays a role in First Amendment claims, I would reserve decision on those questions until they are properly presented to this court and we can address them with the benefit of full adversarial testing,” Gorsuch wrote in a partial dissenting opinion.
Zane Dale Wilson, an attorney for Bartlett with the Fairbanks firm CSG, has not returned an email seeking comment. Dario Borghesan argued the case for the state of Alaska. In a statement this afternoon, the Alaska Department of Law said it was pleased with the court’s holding.