Nieves v. Bartlett
139 S. Ct. 1715 (2019)
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Rule of Law:
A plaintiff bringing a First Amendment retaliatory arrest claim must plead and prove the absence of probable cause for the arrest. A narrow exception to this no-probable-cause rule exists if the plaintiff presents objective evidence that they were arrested when other similarly situated individuals who had not engaged in protected speech were not arrested.
Facts:
- During the 'Arctic Man' winter festival in Alaska, Sergeant Luis Nieves instructed partygoers to move a beer keg inside their RV.
- According to Nieves, Russell Bartlett then belligerently yelled at the RV owners not to speak with the police.
- A few minutes later, Bartlett observed Trooper Bryce Weight questioning a minor about underage drinking.
- According to Weight, Bartlett approached aggressively, stood between the officer and the teenager, and yelled at Weight.
- Bartlett disputes the officers' accounts, claiming he was not aggressive or intoxicated and was merely trying to be heard over loud music.
- After Weight pushed Bartlett back, Nieves rushed over and initiated an arrest.
- During the arrest, Bartlett claims Nieves said, '[B]et you wish you would have talked to me now.'
Procedural Posture:
- The State of Alaska dismissed the criminal charges against Russell Bartlett.
- Bartlett sued officers Nieves and Weight in the U.S. District Court for the District of Alaska, alleging a retaliatory arrest in violation of the First Amendment.
- The District Court, a court of first instance, granted summary judgment to the officers, holding that the existence of probable cause defeated the claim.
- Bartlett, as appellant, appealed to the U.S. Court of Appeals for the Ninth Circuit, an intermediate appellate court.
- The Ninth Circuit reversed the district court, holding that a retaliatory arrest claim could proceed despite the presence of probable cause.
- The officers, as petitioners, petitioned for a writ of certiorari from the U.S. Supreme Court, which was granted.
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Issue:
Does the existence of probable cause to make an arrest defeat a plaintiff's First Amendment claim that the arrest was retaliatory for engaging in protected speech?
Opinions:
Majority - Chief Justice Roberts
No, the existence of probable cause does not always defeat a First Amendment retaliatory arrest claim, but it generally does unless a narrow exception applies. To state a claim, a plaintiff must plead and prove that the police lacked probable cause for the arrest. This rule is adopted from the retaliatory prosecution context of Hartman v. Moore, because retaliatory arrest claims present similar difficulties in proving causation and risk chilling legitimate police conduct with subjective inquiries into an officer's motive. However, a narrow exception is warranted for cases where an officer has probable cause for a minor offense but typically exercises discretion not to arrest. In such cases, a plaintiff can proceed by presenting objective evidence that similarly situated individuals who did not engage in protected speech were not arrested. Because the officers had probable cause to arrest Bartlett for his conduct and he did not provide evidence to support the narrow exception, his claim fails.
Concurring-in-part-and-dissenting-in-part - Justice Gorsuch
No, the presence of probable cause does not defeat a First Amendment retaliatory arrest claim. The First Amendment protects against abuse of authority for unconstitutional reasons, which is a separate inquiry from the Fourth Amendment's concern with the lawful authority to arrest. While the absence of probable cause is not an essential element of the claim, its presence is relevant to causation; if an arrest was for a serious crime, it is unlikely speech was the but-for cause. The Court's reliance on Hartman v. Moore is misplaced because that case involved the distinct causal problem of a prosecutor's intervening decision. While something like the 'clear evidence' standard from selective prosecution cases like United States v. Armstrong might apply, it would be premature to adopt a definitive rule without further briefing and consideration.
Dissenting - Justice Sotomayor
No, the existence of probable cause does not defeat a First Amendment retaliatory arrest claim. The majority is correct to reject an absolute probable-cause bar, but the new rule it creates is flawed and unsupported. The proper framework is the established Mt. Healthy burden-shifting test, where the plaintiff first shows that protected speech was a motivating factor for the arrest, and the burden then shifts to the officer to prove the arrest would have occurred anyway. The majority's new requirement for 'objective evidence' of similarly situated individuals is arbitrary, impractical for plaintiffs, and will allow officers to shield flagrant misconduct behind minor, pretextual offenses. This approach improperly hybridizes Fourth Amendment objective standards with a First Amendment claim that is inherently about an officer's subjective motive.
Analysis:
This decision establishes a significant new hurdle for plaintiffs in First Amendment retaliatory arrest cases by generally requiring them to prove a lack of probable cause. By tethering the analysis to the objective standard of probable cause, the Court aims to protect police officers from litigation based on subjective motives, which are difficult to prove and can deter legitimate law enforcement. However, the Court also created a narrow but important 'selective enforcement' exception for situations where probable cause exists but is rarely acted upon. This exception acknowledges the potential for abuse but places a heavy burden on plaintiffs to produce objective, comparative evidence, the scope of which will be a key issue in future litigation.
