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Posted on Wednesday, June 26, 2019

First Amendment: free speech clause; retaliatory arrest; 42 U.S.C. §1983

NIEVES v. BARTLETT, ___ U.S. ___, No. 17-1174 (28 May 2019).

Facts and lower court rulings

Russell Bartlett was arrested during an event in Alaska called “Arctic Man,” a winter sports festival in the remote Hoodoo Mountains near Paxson, Alaska.  Paxson is a small community of a few dozen residents.  But once a year almost 10,000 people descend on the area for Arctic Man, an event known for extreme sports and extreme alcohol consumption.  During that week, the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska.  It is a major challenge for law enforcement officers, many of whom are deployed to Paxson from other parts of Alaska.

On the last night of the Arctic Man event in 2014, Sergeant Nieves and Officer Weight arrested Russell Bartlett.  The parties dispute the details about the arrest, but generally agree on the overall course of events.  It all started when Officer Nieves asked a third-party to move his beer keg into his RV, and Bartlett butted in and had a verbal encounter with Nieves.  Nieves tried to explain the situation to Bartlett, but Bartlett was drunk, refused to speak to Nieves, and told Nieves to leave.  Rather than escalate the encounter, Sergeant Nieves left. Bartlett, in his version of the incident, denies being drunk and claims that Sergeant Nieves became aggressive.  Several minutes later, in a separate incident, Officer Weight asked a teenager if he and his underage friends had been drinking, Bartlett was nearby and intervened between Weight and the teenager and told Weight not to speak to the minor.  Bartlett stood very close to Officer Weight, and Weight pushed him back.  Sergeant Nieves saw the encounter and moved in and arrested Bartlett.  When arresting Bartlett, Nieves allegedly said, “bet you wish you would have talked to me now.”  Bartlett was charged with disorderly conduct and resisting arrest.

The State dismissed the criminal charges against Bartlett, and Bartlett sued the officers under 42 U.S.C. §1983, which provides a cause of action for deprivation of federal rights.  Bartlett alleged that the officers violated his First Amendment rights by arresting him in retaliation for his speech.  The protected speech, according to Bartlett, was his refusal to speak with Nieves earlier in the evening and his intervention in Weight’s questioning of the teenager.  The District Court granted summary judgment for the officers.  The court ruled that the officers had probable cause to arrest Bartlett and that the existence of probable cause precluded Bartlett’s First Amendment retaliatory arrest claim.

The Ninth Circuit reversed.  The Court of Appeals held that a plaintiff can prevail in a First Amendment retaliatory arrest claim even if there is probable cause to arrest the plaintiff.  According to the Ninth Circuit, at the summary judgment stage, a plaintiff must prove only: (1) that the officer’s conduct would chill an ordinary person from future free speech; and (2) that the plaintiff has advanced sufficient evidence that would enable him ultimately to prove at trial that the officer’s desire to chill the plaintiff’s speech was the real reason for arresting him.  The Ninth Circuit said that in Bartlett’s case a jury might conclude that the officers arrested Bartlett in retaliation for his statements earlier that night.

Supreme Court’s decision

The First Amendment prohibits government officials from retaliating against a person because of the person’s protected speech, and an aggrieved person can sue the officials under 42 U.S.C. §1983.  For example, in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), a teacher claimed that a school district refused to rehire him in retaliation for his protected speech.  The Court held that the teacher was not entitled to reinstatement if the Board of Education would have reached the same decision absent the teacher’s protected speech.  The Court established the following burden and order of proof.  The plaintiff bears the initial burden of proving that an unconstitutional animus was a motivating factor for the adverse decision.  The burden then shifts to the defendant to prove that, even without any retaliatory motive, the defendant would have taken the complained of action. 

Proof of retaliatory motive and the plaintiff’s injury is not sufficient.  The plaintiff must prove that the retaliatory motive caused the injury.  Specifically, it must be a “but for” cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive. Hartman v. Moore, 547 U.S. 250, 260 (2006). 

Hartman was a retaliatory prosecution case, not a retaliatory arrest case.  The plaintiff alleged that he was prosecuted in retaliation for his speech.  The Court held that the plaintiff had to plead and prove the absence of probable cause for the underlying criminal charge.  Absence of probable cause is a necessary element to prove retaliatory prosecution.  Usually, in a retaliatory prosecution case, the government official with the malicious motive (that is, the arresting officer) does not do the retaliatory act, which is the act of initiating the prosecution.  It is the prosecutor who decides to prosecute, and that decision has the presumption of regularity and is generally immune from suit. 

Hartman said that in a retaliatory prosecution case the plaintiff must prove more than the police officer’s subjective animus.  The plaintiff must prove that the prosecutor’s decision was objectively unreasonable because not supported by probable cause.  Thus, Hartman adopted the requirement that the plaintiff must plead and prove the absence of probable cause for the underlying criminal charge.  Using the same line of reasoning, the absence of probable cause provides weighty evidence that the arresting officer’s animus caused the arrest, whereas the presence of probable cause suggests the opposite. 

In a retaliatory arrest case, the causal inquiry is more complex because protected speech is often a legitimate consideration for police officers when deciding whether to make an arrest.  Lozman v. Riviera Beach, 585 U.S. ___, ___ (2018)(slip op., at 9).  That kind of assessment happened in the instant case.  The officers testified that they perceived Bartlett to be a threat based on a consideration of the content and tone of his speech, his combative posture, and his apparent intoxication.  It is particularly difficult to determine whether an arrest was caused by the officer’s malice provoked by the person’s speech or the person’s criminal conduct.  Requiring the plaintiff to plead and prove the lack of probable cause provides an objective standard.  In the Fourth Amendment context, the Supreme Court has almost uniformly rejected invitations to probe subjective intent. Ashcroft v. al-Kidd, 563 U.S. 731, 737 (2011).  When reviewing an arrest, the Court asks whether the circumstances, viewed objectively, justify the arrest, whatever the subjective intent of the arresting officer.  An officer’s state of mind is simply irrelevant and provides no basis for invalidating an arrest. Devenpeck v. Alford, 543 U.S. 146, 153, 155 (2004).

In the instant case, the Court held that a plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.  Otherwise, a retaliatory arrest claim fails.  If the plaintiff establishes the absence of probable cause, then the Mt. Healthy test governs.  The plaintiff must prove that retaliation was a substantial or motivating factor behind the arrest; and if that showing is made, the defendant can prevail only by proving that the arrest would have been initiated without respect to retaliation. Lozman, 585 U.S. at ___ (slip op., at 8). 

The Court declared one exception to the no-probable cause rule: cases in which officers have probable cause to arrest, but typically exercise their discretion not to do so.  If the plaintiff provides objective evidence that he was arrested when other similarly situated persons not engaged in protected speech were not arrested, then the no-probable cause rule does not apply.

Chief Justice Roberts delivered the opinion of the Court, joined by Justices Breyer, Alito, Kagan and Kavanaugh.  Justice Thomas concurred in part and concurred the judgment.  Justice Ginsburg concurred in the judgment in part and dissented in part; Justice Ginsburg argued that the case should be decided solely under the Mt. Healthy test.  Justice Gorsuch concurred in part and dissented in part.  Justice Gorsuch contended that evidence showing that similarly situated persons were not arrested should not be a mandatory requirement to surmount the no-probable cause rule; other kinds of evidence, such as an officer’s questions and comments to the arrestee could be equally probative and should be an acceptable substitute for comparative arrest data.  Justice Sotomayor dissented, rejecting the probable cause rule that a plaintiff must plead and prove no probable cause.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.