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The free speech case involves a man arrested at a festival in Alaska. "It’s significant because it narrows the scope of what individuals can sue the police for," says one legal expert.
If police show probable cause for arresting someone, then that person has a narrow path to file a lawsuit alleging that the arrest was in retaliation for something previously said or expressed to officers, the U.S. Supreme Court ruled on Tuesday.
The episode at the center of the case unfolded in 2014 at the “Arctic Man” festival, held in the Hoodoo Mountains, near Paxson, Alaska. Snowmobile races, bonfires, parties and copious drinking are among the activities at the event, according to court documents.
Paxson normally has a few dozen residents, but when the festival is on the number of people in the area can swell to upwards of 10,000 and police are brought in from around the state.
Russell Bartlett was arrested at the festival by Sergeant Luis Nieves and Trooper Bryce Weight, accused of disorderly conduct and resisting arrest after an encounter with the officers.
The two sides disagree over what exactly led up to the arrest. But Bartlett claimed that the police arrested him in retaliation for things he did and didn’t say, violating his free speech rights.
Chief Justice John Roberts wrote the majority opinion in the case.
In it, he refers to a decision by the court in 2006, in the case Hartman v. Moore, requiring plaintiffs bringing retaliatory prosecution claims to show that a decision to press charges was “objectively unreasonable because it was not supported by probable cause.”
Lawyers for Nieves and Weight argued that the same standard should apply in First Amendment retaliatory arrest cases. “As a general matter, we agree,” Roberts wrote.
“Because there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law,” his opinion adds.
Justices Stephen Breyer, Samuel Alito, Elena Kagan, and Brett Kavanaugh signed onto the majority opinion, and Justice Clarence Thomas joined except for one part.
"It’s significant because it narrows the scope of what individuals can sue the police for," said Seth Stoughton, a professor at the University of South Carolina School of Law. "The court just made it harder for an individual to press a First Amendment retaliation claim."
Stoughton said he's not sure how often people file lawsuits like the one in the Bartlett case, but that it is not uncommon for people to claim—without suing—that arrests for offenses like disorderly conduct, or breach of peace, were retaliatory.
"On some number of occasions that arrest is for disagreeing with a cop, or being mouthy to a cop, or cussing at a cop," he said. "You certainly hear about it a lot when you talk to prosecutors and defense attorneys and cops and people who have been arrested," he added.
As explained in Tuesday’s ruling, when Nieves first encountered Bartlett around 1:30 a.m., the officer says Bartlett appeared to have been drinking, yelled at fellow festival-goers telling them not to speak with police, and then yelled at Nieves.
Bartlett says he was not drunk, never yelled at Nieves, and that Nieves was aggressive toward him because he refused to speak to the officer.
After the initial encounter between Bartlett and Nieves, Bartlett approached Weight who was asking someone under 21 whether they and their friends had been drinking. Weight says Bartlett got close to him and acted combative. Bartlett disputes this version of events.
The arrest took place after Nieves said that he saw Weight push Bartlett away.
After his arrest, Bartlett was taken to a holding tent and released a few hours later, with no physical injuries, the ruling says. The criminal charges against him were eventually dismissed.
Bartlett later filed a lawsuit against the two officers claiming that they’d violated his First Amendment rights. He alleged that the arrest was an act of retaliation against him because he refused to speak with Nieves and intervened in Weight’s interaction with the minor.
By Bartlett’s account, Nieves told him at the time of the arrest “bet you wish you would have talked to me now.”
A federal district court tossed out the case before it went to trial, ruling that because the officers had probable cause to arrest Bartlett his First Amendment claim was blocked.
But the 9th U.S. Circuit Court of Appeals reversed that decision, and held that the existence of probable cause did not bar Bartlett’s claim that his arrest was retaliatory.
Roberts’ opinion says Bartlett was arguing for an approach to the case that would involve moving directly to consider the “subjective intent” of the police officers involved.
“To ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness,” Roberts adds.
If the court opted for the path Bartlett pushed for, he wrote, “policing certain events like an unruly protest would pose overwhelming litigation risks. Any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation.”
The Supreme Court ruling leaves open the possibility for people to bring lawsuits like Bartlett's when they present “objective evidence” that they were “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
This carveout could come into play in circumstances where officers have probable cause to make an arrest, but would typically refrain from doing so—jaywalking offenses for instance.
Thomas, in his opinion, disagreed with this exception.
Stoughton described this remaining legal path as "narrow in principle and unavailable in application" and "a door painted on a wall."
It would be difficult for a plaintiff to get the information needed to mount a viable lawsuit under this framework, he said, noting police departments don't track how many people they do not arrest for a particular crime. He also said it's ambiguous in his view how to interpret what it means to be "otherwise similarly situated."
Going forward, he said what is more likely in these sorts of cases is there will be litigation about what exactly establishes probable cause.
Justices Neil Gorsuch and Ruth Bader Ginsburg filed opinions concurring in part and dissenting in part in the Bartlett case. And Justice Sonia Sotomayor filed a dissenting opinion.
Sotomayor in her dissent says applying well-established standards that govern other types of First Amendment retaliation claims would have been the correct approach, and raises doubts about allowing only the limited opening for First Amendment retaliatory arrest cases.
“Plaintiffs who would rely on other evidence to prove a First Amendment retaliatory arrest claim appear to be out of luck, even if they could offer other, unassailable proof of an officer’s unconstitutional ‘statements and motivations,’” she wrote.
“The majority’s approach will yield arbitrary results and shield willful misconduct from accountability," Sotomayor added.
Bill Lucia is a Senior Reporter with Route Fifty and is based in Olympia, Washington.