Supreme Court OKs Retaliatory Arrests For Engaging In Protected Speech

from the a-police-state-is-a-team-effort dept

The Supreme Court has declared it’s cool with cops engaging in retaliatory arrests… just as long as they have the probable cause to do so. Given the thousands of obscure laws we’ve been cursed with by legislators, most law enforcement officers will be able to find some way to shut up someone by putting them in cuffs. (Whatever they’re wrong about can be salvaged by the good faith exception.)

In this case, plaintiff Russell Bartlett was arrested after not talking to police and telling other winter festival attendees to not talk to the police. The officer who arrested Bartlett claimed Bartlett was drunk and disorderly, hence the supposedly-justified arrest. Here’s the background, as summarized in the Supreme Court’s opinion [PDF]:

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.”

In effect, Trooper Nieves was arresting Bartlett for talking about not talking to the police and, I guess, for not talking to Nieves when Bartlett was telling festival attendees to not talk to Trooper Nieves. Trooper Weight is a boxing tier I’m not familiar with.

The Ninth Circuit Appeals Court agreed with Bartlett, finding that probable cause does not excuse retaliatory arrests. The government protested, stating the opposite. Unfortunately, the Supreme Court agrees with the government insistence that retaliatory arrests are excusable with probable cause. In addition, it says that plaintiffs in these cases bear the burden of proving other people haven’t been arrested if they plan to make assertions about a law enforcement officer’s actions.

Because States today permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations—whereas such arrests were privileged only in limited circumstances when §1983 was adopted—a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. An unyielding requirement to show the absence of probable cause in such cases could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585 U. S., at ___. Thus, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.

So… bring data, I guess.

There’s a whole lot more to this opinion than the majority’s. There’s plenty of dissent. Justice Gorsuch both concurs and dissents, but gets right to the point when it comes to the legal ramifications of this ruling.

Mr. Bartlett contends that the officers’ retaliation against his First Amendment protected speech entitles him to damages under 42 U. S. C. §1983. For their part, the troopers insist that the fact they had probable cause to arrest Mr. Bartlett for some crime, or really any crime, should be enough to shield them from liability.

That is what the government argued. And that’s exactly what was granted: literally any arrestable offense trumps citizens’ First Amendment protections. This works out all too well for the government.

As Frank Zappa said, “The United States is a nation of laws, badly written and randomly enforced.” Here’s how Gorsuch puts it:

Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason. History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

Gorsuch goes on to point out the statute governing lawsuits like these (§1983) — civil suits alleging violations of rights by government employees — says nothing about probable cause. All it says is that civil servants can be held personally liable for depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Certainly, probable cause for an arrest might defeat Fourth Amendment claims since that’s why there’s a probable cause requirement for arrests in the first place, but it shouldn’t be enough to instantly defeat claims of First Amendment retaliation. Applying this probable cause tests allows officers to get away with something they shouldn’t.

The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.

Justice Ginsburg’s partial dissent also says this country has too many laws that can be too easily abused to establish precedent that any old probable cause will do.

Given the array of laws proscribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive. If failure to show lack of probable cause defeats an action under 42 U. S. C. §1983, only entirely baseless arrests will be checked.

Sotomayor’s dissent aligns itself with Gorsuch and the majority’s mysterious decision to rewrite §1983 on the fly to add probable cause to the long list of ways government employees can dodge being held responsible for rights violations. Had the court restrained itself to a narrow decision and not placed an additional evidentiary burden on plaintiffs, this might have been OK. But it didn’t and in reaching this broader conclusion, it has opened the door for SCOTUS-sanctioned abuse.

Were it simply an unorthodox solution to an illusory problem, the standard announced today would be benign. But 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. 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.

The standard the court has erected demands plaintiffs to provide evidence they are unlikely to ever obtain.

[T]he majority suggests that comparison-based evidence is the sole gateway through the probable-cause barrier that it otherwise erects. Such evidence can be prohibitively difficult to come by in other selective-enforcement contexts, and it may be even harder for retaliatory arrest plaintiffs to muster. After all, while records of arrests and prosecutions can be hard to obtain, it will be harder still to identify arrests that never happened. And unlike race, gender, or other protected characteristics, speech is not typically sorted into statistical buckets that are susceptible of ready categorization and comparison.

The impossibility of meeting this evidentiary bar, along with the broader proclamation that probable cause beats the First Amendment in nearly every situation, pretty much dead-ends future retaliatory arrest lawsuits. Cops may not be the best students of the law, but they’re pretty quick to pick up on legal declarations that excuse abuses of their power.

Whatever momentum has been gained by legal decisions supporting the right of citizens to film police officers has just been undercut. We’ve already seen years of bullshit arrests for filming cops. This decision says officers are free to continue violating First Amendment rights if there’s any conceivable law someone might be breaking while engaging in “protected” speech. We have too many laws on the books to give law enforcement officers this much deference in enforcing them, especially when Constitutional rights are on the line.

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Comments on “Supreme Court OKs Retaliatory Arrests For Engaging In Protected Speech”

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50 Comments
btr1701 (profile) says:

Re: Re:

If the facts of the situation described in the Court’s opinion are true, it sounds like a lot more than ‘disrespect of a cop".

Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight and the teenager.

That’s interference with legitimate police business and obstruction right there. You don’t get to go up to a cop who is interviewing a suspect or witness, put yourself physically between them, and shout and make it impossible for the cop to conduct his legitimate business. That’s a crime and you can legitimately be arrested for playing stupid games like that.

Then Bartlett, already in close proximity to the trooper and acting belligerently, stepped toward the trooper in a threatening manner. That’s additional grounds for arrest.

And that’s exactly what was granted: literally any arrestable offense trumps citizens’ 1st Amendment protections.

On the other hand, you don’t get a get-out-of-jail-free card for crimes you are committing merely because you shout some protected speech while committing them.

In this case, the guy had committed various offenses, any one of which he could legitimately be arrested for. He shouldn’t be hands-off to law enforcement merely because he was shouting some speech which would otherwise be protected at the same time.

That One Guy (profile) says:

Re: Re: Re:

If you take them at their word, sure. Why anyone would do that is beyond me, but whatever.

That said…

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.”

From the other side he claims he wasn’t arrested for any of the things you listed, was slow to comply because he physically couldn’t do what he was ordered to quickly, and the arrest itself was pretty clearly in retaliation not to what he did but what he said(or didn’t as the case may be).

Anonymous Coward says:

Selective enforcement. When everybody is violating some law or another at any given time, people who annoy those in power can be arrested on a whim. We’re at a point where arbitrary arrest and charges can be brought on people just for offending authority figures, but it’s okay because we have rules that allow us to pretend that that’s not what’s happening.

Anonymous Coward says:

Re: Re:

When everybody is violating some law or another at any given time…

True that. I personally know a private attorney who used to be a prosecutor. He once told me that there are so many laws on the books that he could find something to charge anybody with a crime if he wanted to. And he knows what he is talking about.

It’s all about selective enforcement. That’s what allows people in high offices to get away with stuff that would land ordinary persons in jail.

Uriel-238 (profile) says:

Re: Non-selective enforcement

The point of a system that mandated the enforcement of every law in all circumstances would be to cull and remove those laws that are overly broad.

Instead we get a system in which enemies and undesirables according to officials are funneled into the prison system while friends and desirables are excused for fraud, perjury and parking in handicapped zones.

Anonmylous says:

There goes the neighborhood

Thank you Supremes for making police lives even harder now. Once it gets around you can be arrested for NOT talking to police, no one will view them as allies and protectors anywhere.

You just escalated the ‘war’ on law enforcement.

Should I buy stock in firearms manufacturers or airlines? Cause its getting awful close to Guns or GTFO time.

FlatZOut (profile) says:

Is This a Retarded Version of “The Thinning?”

Except instead of using tests and exams they just randomly arrest people for “probable causes” that don’t exist.
We have a right to say what we want, because we are people. We are not bubonic slaves being forced through a dystopian regime. If you want an example of how corrupt the governments of the world are, Tim Cushing just gave you one.

That Anonymous Coward (profile) says:

I had a CI tell me they bought drugs there, thats PC.

  • Murdered man & woman, yet the force tried to protect this case until it came out how crooked the cops were.

I had heard he liked to hide the drugs in his butt, thats PC.

  • Multiple medical exams of his butt, enemas, & finally a colonoscopy when no drugs were found at any point.

My training & experience tells me that a car that is clean/dirty/changes lanes/drives the speed limit/has 1,2,3,4 occupants is PC for drug dealing.

My training & experience tells me if I find money in a car, its the proceeds of drug dealing so I have PC to steal it.

My training & experience tells me that this asshole pissed me off and thats PC so I can throw him in the paddy wagon and take him for a rough ride.

Dear SCOTUS – GFY. They murder, they rape, they violate our alleged rights but the magic of ‘qualified immunity’ says no one ever told a cop not to wear a red condom when raping a child so immunity for him… and now if you dare to say something the cop dislikes suddenly the magic of PC means a cop already willing to violate the law in front of witnesses can disappear those witnesses. What in the actual fuck is wrong with you people?

btr1701 (profile) says:

Re: Re: Re: Re:

Interesting thought experiment: split the US into two countries, composed of the states that have been consistently voting Republican, and the rest.

It’s already been done.

https://www.amazon.com/Peoples-Republic-Kurt-Schlichter/dp/1539018954/ref=sr_1_2?keywords=indian+country+kurt+schlichter&qid=1559585839&s=books&sr=1-2

nasch (profile) says:

Re: Re: Re:2 Re:

"Now, as the former blue states begin to collapse under the dead weight of their politically correct tyranny…"

Gee I wonder what his take on it is. I was thinking more of a political science or economics look rather than a thriller (and hopefully something not so partisan) but sounds like it could be interesting.

Uriel-238 (profile) says:

Re: Re: Re:3 "Politically Correct Tyranny"

Wait, my understanding of the whole right / left thing is this:

Right: We’re going to do it the King’s way, and the way his father did it and his father did it before him, because that’s the way it’s always been done.

Left: Well, that tower collapsed like a neutron star. Let’s try doing it another way!

I’d assume in a red-state / blue state break, Texas would have to provide for all the other states, or do they just let their poor starve to death?

Can anyone on the right explain what I’m missing?

nasch (profile) says:

Re: Re: Re:4 "Politically Correct Tyranny"

do they just let their poor starve to death?

That would be a very Republican sort of thing to do, but hopefully they would not. There would be a whole lot of food produced in that country but would the people be able to afford to buy it? A lot would be exported to the Liberal United States of America, but presumably the profits from that would be concentrated in the hands of farm owners rather than taxed and distributed. Given the conservative desire to slash government services for the poor and taxation, and the low income levels (and education, health, etc.) in red states, it’s really not clear to me what would happen to them. What about when tornadoes and hurricanes hit, and the national government doesn’t have all that money from the wealthy blue states to help out? It could be a real mess.

If you can’t tell, I’m not on the right so I don’t know how much I can offer.

Anonymous Coward says:

I'll take the unpopular position

The Supreme Court had no good options here. They could rule as they did, and cause the very real problems described above. They could’ve reversed, and said that probable cause is not a defense against claims of retaliatory arrest. If they did, then you can bet that every arrestee who was even slightly combative prior to arrest would allege a retaliatory arrest. By what standard would we judge whether the arrest was legitimate, if probable cause is insufficient grounds? The real issue here is that it is far far too easy for the police to claim "probable cause" and have that accepted, both due to excessive deference from the courts and excessive criminalization from the legislature. In my opinion, the right solution is to say that probable cause is sufficient, but also to cut down on the number of ways that the police can create "probable cause" divorced from reality and good sense. When alleged probable cause has a real nexus to actual conduct worthy of arrest, it’s a perfectly reasonable standard to use for separating legitimate arrests from retaliatory arrests.

That One Guy (profile) says:

Re: One word: Tough

The Ninth Circuit Appeals Court agreed with Bartlett, finding that probable cause does not excuse retaliatory arrests. The government protested, stating the opposite. Unfortunately, the Supreme Court agrees with the government insistence that retaliatory arrests are excusable with probable cause. In addition, it says that plaintiffs in these cases bear the burden of proving other people haven’t been arrested if they plan to make assertions about a law enforcement officer’s actions.

The case wasn’t whether or not someone could be arrested with probable cause that they’d committed a crime, it was whether or not someone could be arrested in retaliation for saying/not saying something, so long as they claimed they had probable cause of some sort after the fact, and as pointed out in the article and comment section the law is such a tangled mess than if a cop wants to find something to use as an excuse to arrest you they can easily do so.

They could’ve reversed, and said that probable cause is not a defense against claims of retaliatory arrest. If they did, then you can bet that every arrestee who was even slightly combative prior to arrest would allege a retaliatory arrest.

… and? If the person had a good case then the charges would be dropped(ideally), if not they wouldn’t be. Between ‘police can engage in retaliatory arrests’ and ‘people arrested can argue that they were arrested on bogus grounds(which they almost certainly already can)’ the first strikes me as much worse for everyone but the police.

Rekrul says:

Re: I'll take the unpopular position

The Supreme Court had no good options here. They could rule as they did, and cause the very real problems described above. They could’ve reversed, and said that probable cause is not a defense against claims of retaliatory arrest. If they did, then you can bet that every arrestee who was even slightly combative prior to arrest would allege a retaliatory arrest.

Given that the word of a cop is given much more weight by the courts than the word of an ordinary person, I’d say that the latter option would have been the better one.

Mr Edin-Opal -- now there's a palindrome for ya says:

Clearly re-writer is just gainsaying. It's the Supreme Court.

"Nuhn’t uh! That’s just WRONG!"

Here at Techdirt, that’s standard. They know the law and public policy better than anyone, let alone professionals who’ve actually read and thought law for decades. Nope, here at Techdirt, Netwits are TOPS.

Of course, when they agree with decisions, then they shriek that are handed down as if from god, can’t be reviewed or legislation revised.

Bruce C. says:

A strange new standard

The court’s majority seems to be creating a "discrimination" standard for these types of lawsuits: you can only sue if you can demonstrate that your arrest was different from the norm for the charge(s) filed or not being filed for the population at large.

As Gorsuch points out, this ignores the fact that if a civil rights violation occurred, that’s an absolute hard line in the constitution, not a statistical anomaly when comparing with other arrests of the same type.

The majority is basically applying a good faith exception in the form of "As long as other officers are doing it, I can too." There are enough police forces where the aggressive/corrupt/power-mad cops are common enough that nobody would be able to win a civil rights suit based on an unusual arrest.

Anonymous Coward says:

and the tyranny of the US continues while removing more citizens rights! when is this gonna stop? whoever is pulling the strings of those throwing the Constitution out the window is doing it simply for their own purpose! i somehow doubt if anyone will notice though because money out ‘Trumps’ sense every time!

someoneinnorthms says:

The whole point of the Fourth Amendment was to guard against the accretion of so much power into the hands of tyrants.

The only thing stopping any of us from spending tonight behind bars is the unwillingness of a police office to say that we were speeding, or evading him in a motor vehicle, or drunk in public, or engaging in disorderly conduct. Any person, at any time, and at any place (except, perhaps, in one’s own home) is subject to being arrested for any reason with the slightest of justification of a law enforcement officer’s word that he saw us commit a minor misdemeanor offense in his presence. There is no need for corroboration. There is no need for us to be actually guilty. All it takes is a law enforcement officer’s word. How is this any better than the petty tyranny of a maniacal monarch?

In my state, this includes speeding. If you are speeding, you can go to jail. Crazy world we inhabit.

Uriel-238 (profile) says:

"opportunities for the rare ill-intentioned officer"

The problem is that ill-intentioned officers are not so rare, and it is terrifying that the Supreme Court of the United States has failed to recognize this.

Our law enforcement already has a reputation where bad apples are so prevalent that the alleged good ones find themselves covering for the bad ones by ignoring their trespasses without report or even lying in testimony.

The ill-intentioned officer is the norm.

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