On May 29, 2019, the U.S. Supreme Court decided the matter of Nieves v. Bartlett, Docket no. 19-1174. The central question was whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983. In a 6-3 decision, the Court held that because police officers had probable cause to arrest Russell Bartlett, his First Amendment retaliatory arrest claim fails as a matter of law.
Russell Bartlett was attending the Arctic Man ski and snowmobile race festival in Alaska. Its an annual sports festival in the remote Hoodoo Mountains near Paxson, Alaska of about 10,000 people which is generally accompanied by heavy drinking and partying.
On the last night of the festival, Sergeant Luis Nieves and Trooper Bryce Weight were patrolling and investigating underage drinking. According to Nieves, at about 1:30 a.m., Nieves was asking some partygoers to move their beer keg inside their RV because minors had been making off with alcohol. It is at this point, Bartlett began yelling to the RV owners that they should not speak with the police. Nieves approached Bartlett to explain the situation, but Bartlett was highly intoxicated and yelled at him to leave. Bartlett disputed Nieves’ account, in particular, that he was drunk and yelling at Nieves. Rather than allow the situation to escalate, Nieves stated that he walked away from Bartlett. Shortly thereafter, Bartlett observed Trooper Weight questioning a teenager. Bartlett believed that the trooper could not question the teenager without a parent or guardian present, so he approached Weight to interfere. According to Weight, Bartlett 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 claimed that Bartlett then stepped very close to him in a combative way, so Weight pushed him back. Nieves saw the confrontation and rushed over, arriving right after Weight pushed Bartlett. Nieves immediately initiated an arrest, and when Bartlett was slow to comply with Nieves’ orders, Nieves forced him to the ground and threatened to tase him.
Bartlett denies that he was aggressive, and claimed that he stood close to Weight only in an effort to speak over the loud background music. Bartlett further says he was slow to comply with Nieves’s orders, not because he was resisting arrest, but because he did not want to aggravate a back injury. After Bartlett was handcuffed, he claimed that Nieves said: “[B]et you wish you would have talked to me now.” Nieves denies that he said that.
The officers took Bartlett to a holding tent, where he was charged with disorderly conduct and resisting arrest. He had sustained no injuries during the episode and was released a few hours later. The Charges against Bartlett were subsequently dropped without prosecution.
Bartlett subsequently sued the officers for damages under 42 U.S.C. § 1983, making claims for false arrest and imprisonment, excessive force, malicious prosecution, and retaliatory arrest. Bartlett claimed that the troopers arrested him in retaliation for refusing to talk to Nieves and for questioning the troopers’ authority to speak to the teenager, not for another valid reason. Bartlett claimed that his refusal to talk and the statements he made to the troopers were protected under the First Amendment. Bartlett claimed that the real reason for his arrest was because he was exercising his First Amendment rights and the troopers didn’t like it.
The district court granted summary judgment to the officers on all claims. The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s ruling on the retaliatory arrest claim, explaining that under its own precedent, a showing of probable cause did not preclude a claim of retaliatory arrest. The appellate court noted that in 2012, the U.S. Supreme Court had clarified that its decision in Hartman v. Moore, 547 U.S. 250 (2006), which held that a plaintiff could not make a retaliatory prosecution claim if the charges were supported by probable cause, did not necessarily extend to retaliatory arrests. And since that time, the Ninth Circuit had held that a plaintiff could make a retaliatory arrest claim even if the arresting officers had probable cause.
Nieves and Weight relied on the Court’s prior holding in Hartman v. Moore and argued that Bartlett had to prove that the troopers did not have probable cause to arrest him in order to bring a retaliatory arrest claim. In Hartman, the Court found that if a prosecutor has probable cause to prosecute, then courts will not question if there was prosecutorial misconduct. As a result, where there is probable cause to prosecute, any claims for retaliatory prosecution are barred. The troopers argued that the Court shouldn’t get into complicated questions of causation or the real reason for an arrest because police must make quick decisions, therefore claims for retaliatory arrest should be barred if there is probable cause.
Bartlett relied on the Court’s recent holding in Lozman v. City of Riviera Beach, Florida, 585 U. S. ___ (2018). In that case, the Court held that probable cause does not categorically bar a plaintiff from suing the municipality if plaintiff could show that the real reason for the arrest for exercising his First Amendment rights was retaliation pursuant to an alleged “official municipal policy” of retaliation. Bartlett argued that he should have the opportunity to show a court that the real reason for his arrest was not for any unlawful actions, but for retaliation against exercising his First Amendment rights in speaking out against the troopers.
The Court ultimately ruled that Bartlett’s retaliatory arrest claim failed because the officers had probable cause to arrest him. The Court reasoned that the facts underlying Bartlett’s claim were similar to those in Hartman. Bartlett’s situation presents the same difficulties in determining whether officer retaliation was the actual cause for an arrest when there’s also evidence that the officers had probable cause to arrest. The Court noted that determining causation in retaliatory arrest claims is particularly difficult in the First Amendment context because there are frequently situations where speech that is protected by the First Amendment can be legitimately considered by officers when deciding whether to make an arrest.
The Court carved a small exception to the overall ruling. If someone can show that he or she was arrested for an offense after engaging in First Amendment protected speech while others who did not engage in such protected speech were not arrested for the same offense, the person will not have to show lack of probable cause for the arrest. This creates a second exception in addition to the one created by Lozman.
Despite the exceptions, the Court’s holding erodes the protection afforded by Section 1983. Anyone engaging in a free speech and/or public protest is at risk of being arrested in retaliation if the police can show probable cause for the arrest. Generally harmless violation of traffic laws, public gathering and loitering statutes, noise ordinances could be the basis of probable cause for a retaliatory arrest. The fear of being arrested for minor infractions at an otherwise lawful demonstration or protest could have a chilling effect on the exercise of free speech.
Prince Law Offices Blog 
Pretty hard to construe retaliatory arrest, or a policy of RA, when the arresting officer actually walked away from the defendant the first time.
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