In Nieves v. Bartlett, the Supreme Court got the right result, but wrongly so

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In Nieves v. Bartlett, the Supreme Court got the right result, but wrongly so

by Adam Carrington

May 29, 2019 01:46 PM
 
When can a police arrest violate your right to freedom of speech? That was the issue before the Supreme Court in an opinion they released on Tuesday, Nieves v. Bartlett.

You can imagine how it could. No one wants to get arrested. If police don’t like what you say, they might use detention to retaliate against that speech. The ramifications are both pervasive and pernicious. Consider an officer arresting you for asking to see a search warrant; or, detaining you because he disagrees with your declared opinion about abortion, immigration, or local zoning ordinances. Such circumstances would punish speech, dissuading people in the future from voicing their opinions.

Russell Bartlett accused two Alaska police officers of such a retaliatory arrest, suing them for damages under a federal law that allows such litigation when state officers violate a person’s federal rights. In 2014, Bartlett was attending “Artic Man,” an event held in Alaska known, the court noted, “for both extreme sports and extreme alcohol consumption.” Late on the event’s final night, Bartlett had several interactions with two Alaskan police officers, Luis Nieves and Bryce Weight. These interactions ended in Bartlett’s arrest for disorderly conduct.

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https://www.washingtonexaminer.com/opinion/in-nieves-v-bartlett-the-supreme-court-got-the-right-result-but-wrongly-so

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https://www.supremecourt.gov/opinions/18pdf/17-1174_m5o1.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

NIEVES ET AL. v. BARTLETT

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 17–1174. Argued November 26, 2018—Decided May 28, 2019

Respondent Russell Bartlett was arrested by police officers Luis Nieves
and Bryce Weight for disorderly conduct and resisting arrest during
“Arctic Man,” a raucous winter sports festival held in a remote part of
Alaska. According to Sergeant Nieves, he was speaking with a group
of attendees when a seemingly intoxicated Bartlett started shouting
at them not to talk to the police. When Nieves approached him, Bartlett
began yelling at the officer to leave. Rather than escalate the
situation, Nieves left. Bartlett disputes that account, claiming that
he was not drunk at that time and did not yell at Nieves. Minutes
later, Trooper Weight says, Bartlett approached him in an aggressive
manner while he was questioning a minor, stood between Weight and
the teenager, and yelled with slurred speech that Weight should not
speak with the minor. When Bartlett stepped toward Weight, the officer
pushed him back. Nieves saw the confrontation and initiated an
arrest. When Bartlett was slow to comply, the officers forced him to
the ground. Bartlett denies being aggressive and claims that he was
slow to comply because of a back injury. After he was handcuffed,
Bartlett claims that Nieves said “bet you wish you would have talked
to me now.”

Bartlett sued under 42 U. S. C. §1983, claiming that the officers
violated his First Amendment rights by arresting him in retaliation
for his speech—i.e., his initial refusal to speak with Nieves and his
intervention in Weight’s discussion with the minor. The District
Court granted summary judgment for the officers, holding that the
existence of probable cause to arrest Bartlett precluded his claim.
The Ninth Circuit reversed. It held that probable cause does not defeat
a retaliatory arrest claim and concluded that Bartlett’s affidavit
about what Nieves allegedly said after the arrest could enable Bartlett to prove that the officers’ desire to chill his speech was a but-for cause of the arrest.

Held: Because there was probable cause to arrest Bartlett, his retalia-tory arrest claim fails as a matter of law. Pp. 4–16.
(a) To prevail on a claim such as Bartlett’s, the plaintiff must show not only that the official acted with a retaliatory motive and that the plaintiff was injured, but also that the motive was a “but-for” cause of the injury. Hartman v. Moore, 547 U. S. 250, 259–260. Establishing that causal connection may be straightforward in some cases, see, e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, but other times it is not so simple. In retaliatory prosecution cases, for exam-ple, the causal inquiry is particularly complex because the official al-leged to have the retaliatory motive does not carry out the retaliatory action himself. Instead, the decision to bring charges is made by a prosecutor—who is generally immune from suit and whose decisions receive a presumption of regularity. To account for that “problem of causation,” plaintiffs in retaliatory prosecution cases must prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. Hartman, 547 U. S., at 263. Pp. 5–7.

More at link.