Supreme Court outlines standard for retaliatory arrests

With little fanfare, the Supreme Court has issued an important ruling on retaliatory arrests, that is, how to resolve cases where someone claims the police arrested them in retaliation for their First Amendment speech. The Court sets forth a framework that seems to favor the police.

The case is Nieves v. Bartlett, decided on May 28. It all started in a remote part of Alaska, where about 10,000 maniacs show up once a year for Arctic Man, "an event known for extreme sports and extreme alcohol consumption," as Chief Justice Roberts writes. He goes on to describe Arctic Man in detail, mostly from the standpoint of morbid fascination, noting that alcohol and snowmobiles "do not always mix well." As I am learning from a recent biography on Roberts, this is the last place he would have gone to as a young man. Arctic Man looks like an Alaskan Beerstock. Anyway, plaintiff got arrested for disorderly conduct and resisting arrest after he told someone else they did not have to speak with the police. The charges were dropped and Bartlett filed this lawsuit.

The Supreme Court uses this case to set out a framework for deciding these cases. On one hand, you cannot be punished for the exercise of free speech. But the police can also arrest you if they have probable cause to believe you committed a crime. So this case involves a clash between the First and Fourteenth Amendments. The Court decides that the plaintiff cannot win a retaliatory arrest claim if the police have probable cause to arrest him. The idea is that if the police have probable cause, then there was an objective basis to arrest the plaintiff, speech or no speech. The Court notes that some people are even legitimately arrested because of their First Amendment speech. As Roberts states,

protected speech is often a “wholly legitimate consideration” for officers when deciding whether to make an arrest. Officers frequently must make “split-second judgments” when deciding whether to arrest, and the content and manner of a suspect’s speech may convey vital information—for example, if he is “ready to cooperate” or rather “present[s] a continuing threat.” Indeed, that kind of assessment happened in this case. The officers testified that they perceived Bartlett to be a threat based on a combination of the content and tone of his speech, his combative posture, and his apparent intoxication.

The Court makes a narrow exception to this rule for cases in which the police have probable cause to make arrests but typically exercise their discretion not to do so, such as in jaywalking cases.

For example, at many intersections, jaywalking is endemic but rarely results in arrest. 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.

The plaintiff in this case loses under this standard because he cannot show the officer who arrested him did so because of his protected speech in opposing police activity.

Justice Sotomayor dissents, arguing that the majority's new rule is needlessly complicated. The better approach, Sotomayor says, draws from established First Amendment retaliation cases in other contexts governed by the Supreme Court's ruling in Mount Healthy v. Doyle (1977), which says the plaintiff wins if his speech was a substantial or motivating factor in the adverse action. In those cases, however, the defendant wins if he can show he would have arrested the plaintiff even without the protected speech. This "timeworn standard is by no means easily satisfied," Sotomayor says.

Even in cases where there is “proof of some retaliatory animus,” if evidence of retaliatory motive is weak, or evidence of nonretaliatory motive is strong, but-for causation will generally be lacking. That is why probable cause to believe that someone was a serial killer would defeat any First Amendment retaliatory arrest claim—even if, say, there were evidence that the officers also detested the suspect’s political beliefs.

With sufficient evidence of retaliatory motive and sufficiently weak evidence of probable cause, however, Mt. Healthy is surmountable. Its orderly framework thus “protects against the invasion of constitutional rights” while burdening legitimate exercises of governmental authority only so far as is “necessary to the assurance of those rights.”