Oral Argument: The First Amendment, Retaliatory Arrest, and Probable Cause

What happens if police officers arrest someone because the officers don’t like the arrestee’s speech — but the officers also have probable cause. Can the arrestee sue for retaliatory arrest in violation of the First Amendment? This was the question in Nieves v. Bartlett, argued on November 26.

The case began when two Alaska state troopers, Luis Nieves and Bryce Weight, arrested Russell Bartlett, an allegedly intoxicated and belligerent attendee at Arctic Man Festival. Bartlett was charged with disorderly conduct and resisting arrest. After a court dismissed the charges, he sued the officers under §1983. Bartlett complained that the arrest was retaliation for his refusal to talk to them and for his challenge to their attempt to question a teenager in the absence of the youth’s parent or guardian.

The officers argue that retaliatory arrest claims should be governed by the common-law rule that probable cause protects officers from liability for enforcing the law, partially because determining causation for arrests is difficult. Principal Deputy Solicitor General Jeffrey Wall argued on behalf of the U.S., supporting the officers. Wall argued that claims of retaliatory arrest should be screened from purely subjective probes into officers’ motivations because such claims are easy to allege and expensive to defend against.

The plaintiff, Bartlett, argued that the Court should reject the common-law rule for three reasons: it would bar meritorious First Amendment retaliation cases regardless of supporting evidence; the rule is unnecessary for screening out meritless cases; and the rule lacks any grounding in the common law as it existed in 1871 when Congress enacted §1983. Bartlett’s lawyer, Zane Wilson, argued that would-be-litigants frequently have trouble finding lawyers for meritless cases, and that they frequently decide not to litigate for retaliatory arrest they’ve been convicted for the crime they were arrested for. Wilson faced a hot bench when he said that arrestees who are eventually convicted would have no damages, saying that as a result, “you’ve eliminated that entire category of cases” from the hypothetical onslaught of litigation the officers warned about. Chief Justice Roberts, Justice Kavanaugh and Justice Alito simultaneously asked “Why?!” Wilson pointed to the sparseness of retaliatory arrest cases that have been cited before the Supreme Court on First Amendment grounds. Justice Kavanaugh challenged him, noting that theoretically, convicts could still bring claims, arguing that the retaliatory motive was the “but for” cause of their arrest.

More in-depth analysis about the case is available from Professor Garrett Epps at The Atlantic.

This post was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

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