U.S. Supreme Court Rules Probable Cause to Arrest Generally Defeats Retaliatory Arrest Claim
What happens when a suspect does not break the law, “fails the attitude test,” and is arrested? He becomes a plaintiff in a First Amendment retaliation case. But what happens when a suspect does the break the law (while still failing the attitude test)? The United States Supreme Court has now answered.
On May 28, 2019, in a decision that will have significant consequences for our 42 U.S.C. § 1983 First Amendment retaliation cases, the high court encountered just this scenario. It resolved that probable cause to arrest generally defeats a retaliatory-arrest claim.
The case is Nieves v. Bartlett, No. 17-1174, 587 U.S. ___ (2019)
II. Facts for Nieves Case
Once a year, the weeklong “Artic Man” festival takes place in rural Alaska. The festival poses challenges for law enforcement to keep the participants safe. Ten thousand people attend Artic Man and, as the name evokes, the event takes place in cold weather. When attendees are not participating in extreme sports, such as snowmobile races, they participate in another dangerous sport – extreme alcohol consumption.
On the last night of the festival, plaintiff Russell Bartlett was highly intoxicated and had two interactions with two members of law enforcement, Sgt. Luis Nieves and Trooper Bryce Weight.
At 1:30 a.m., Sgt. Nieves spoke to festival attendees and asked them to move their keg of beer inside their RV. Sgt. Nieves feared that the keg was accessible to underage drinkers. While Nieves explained his concerns to the RV owners, plaintiff approached and told the RV owners not to talk to Sgt. Nieves. Sgt. Nieves tried to explain his reasons for concern to the plaintiff. Plaintiff yelled at Sgt. Nieves and told him to leave. Sgt. Nieves made the prudent decision to do so.
A short time later, plaintiff saw Trooper Weight asking underage revelers whether they had been drinking. Plaintiff interjected himself into the discussion and told Trooper Weight not to talk to the minors. Weight believed that plaintiff’s words might turn physical, so he pushed plaintiff. Sgt. Nieves saw the interaction, rushed over, and placed plaintiff under arrest.
Plaintiff later claimed that he was a sober and he also denied being aggressive. Plaintiff was arrested for disorderly conduct and resisting arrest. He sustained no injuries. He was released a few hours after his arrest.
III. Criminal Case, Civil Suit, and Lower Court Rulings
The State dismissed the criminal charges. Plaintiff filed suit against the officers for a 42 U.S.C. §1983 cause of action alleging that the officers violated his First Amendment right to free speech. Plaintiff alleged his words to Sgt. Nieves (about the keg) and his words to Trooper Weight (about the underage drinking) were protected speech and that his arrest was retaliatory. The police officers justified their arrest of plaintiff; he interfered with an investigation and physically confronted Trooper Weight.
The District Court granted the police officers’ Motion for Summary Judgment. It ruled that the officers had probable cause to arrest plaintiff and that probable cause precluded the retaliatory arrest claim.
The Ninth Circuit Court of Appeals reversed the District Court. It held a plaintiff can prevail on a First Amendment retaliatory arrest claim, irrespective of probable cause.
IV. United States Supreme Court Decision
Writing for a 5-4 majority, Chief Justice Roberts delivered the Court’s decision: if there is probable cause to arrest a suspect, his subsequent retaliatory claim fails as a matter of law.
The Court’s analysis hinged on probable cause. If there is no probable cause to arrest, the motive of the officer will be (arguably) the officer’s hostility towards the individual who failed the attitude test. Such retaliatory claims will continue to survive. But, if there is probable cause, such existence suggests no retaliation (Nieves, Slip p. 9.) Those retaliatory claims will fail (absent one narrow exception).
What happens when there is probable cause to arrest several people in a group, but the police single out the person in that group who failed the attitude test? The Court provided an example where multiple people jaywalked, and one of the jaywalkers mouthed off to the police and was arrested. The Court reasoned that the arrestee could proceed on a retaliation claim because he could present, “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” (Nieves, Slip p. 14.)
Ultimately, the Supreme Court found Sgt. Nieves and Trooper Weight had objective probable cause to arrest plaintiff: he was intoxicated while interfering with Trooper Weight’s duties: “[a] reasonable officer in Sergeant Nieves’s position could have concluded that Bartlett stood close to Trooper Weight and spoke loudly in order to challenge him, provoking Weight to push back.” (Nieves, Slip p. 16.) With that finding of probable cause, the U.S. Supreme Court ended plaintiff’s retaliatory arrest claim.
Nieves provides a clear rule for our retaliation cases. If the officer has probable cause to arrest, a civil rights claim will fail.
The exception to the rule — the singled-out arrestee — will happen in few situations, but officers nonetheless need to be advised that every suspect must be treated consistently when it comes to breaking the law and failing the attitude test.
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