Supreme Court Hears Oral Argument on Whether Probable Cause Precludes Retaliatory Arrest Claims

Recently, the Supreme Court heard oral argument in Nieves v. Bartlett, a case that addresses whether an officer’s probable cause acts as an absolute bar to a citizen’s First Amendment retaliatory arrest claim.

In the remote Hoodoo Mountains of Alaska, thousands of winter-sport enthusiasts gather each spring for Artic Man, a multi-day festival. The event has garnered a reputation for an intense ski race it showcases, and the alcohol consumption that accompanies it. In April 2014, Russell Bartlett attended Arctic Man with his friend David Krack and Krack’s teenage cousin MacCoy Walker.

On the last night of Artic Man, Sergeant Luis Nieves was on duty as a supervising trooper, and a local news reporter obtained permission to shadow Nieves and capture some of the night’s events on camera. Around 1:30 am, Nieves arrived at the scene of a large outdoor party to investigate underage alcohol consumption. Nieves noticed a beer keg outside of an RV at the party, and approached Bartlett, standing nearby.

The relevant facts are largely undisputed as Nieves and Bartlett’s interaction was caught on camera, although the parties presented different interpretations of each other’s conduct related to the case. In the light most favorable to Bartlett’s version of the facts, Nieves confronted Bartlett by tapping him on the shoulder and asking to speak. When Bartlett asked Nieves why he wanted to speak with him, Nieves’s demeanor changed and he became more aggressive. Bartlett told Nieves that he did not want to talk and Nieves walked away.

Shortly thereafter, Bartlett noticed that Walker was conversing with Trooper Bryce Weight. Bartlett and Krack walked over to Weight and Walker. Bartlett stated to Weight, “You don’t have the authority to talk to him without a parent or guardian present.” Weight then responded “No,” and pushed Bartlett backwards. Bartlett’s right hand rose a bit, and Nieves approached and grabbed Bartlett’s left arm and started to yell at him to “back up.” Weight then walked up and grabbed Bartlett’s right arm, and the officers yelled at Bartlett to “get on the ground.” The officers threatened Bartlett with a Taser and Bartlett voluntarily put his hands behind his back.

The officers placed Bartlett in the trooper vehicle. When Bartlett asked the officers what was going on, Nieves stated “You’re going to jail.” Bartlett then asked Nieves why he was going to jail. Nieves responded “For harassing my trooper.” Nieves then stated, “Bet you wish you would have talked to me now.”

On April 14, 2014, Bartlett was charged with disorderly conduct and resisting or interfering with arrest. Thereafter, Bartlett obtained a copy of a KTVA news video of the incident and requested the case be dismissed. On February 4, 2015, the State dismissed the charges against Bartlett.

On March 2, 2015, Bartlett initiated a 42 U.S.C. § 1983 action against Nieves and Weight based on false arrest, excessive force, malicious prosecution, and First Amendment retaliatory arrest. The district court granted summary judgment to Weight and Nieves on Bartlett’s retaliatory arrest claim. It found that probable cause existed to arrest Bartlett for the uncharged crime of harassment. Thus, according to the district court, Bartlett’s retaliatory arrest claim failed.

Bartlett then appealed the district court’s judgment to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the district court on all claims except the retaliatory arrest claim. The court of appeals reversed the district court’s dismissal of Bartlett’s retaliatory arrest claim, stating that a plaintiff can prevail on a retaliatory arrest claim even if the officers had probable cause to arrest. The court of appeals stated that Hartman v. Moore, 547 U.S. 250 (2006), precludes a retaliatory prosecution claim if the charges are supported by probable cause, and does not necessarily extend to retaliatory arrests. Referring to Ford v. City of Yakima (9th Cir. 2013), the court stated that it has since clarified in the Ninth Circuit that a plaintiff can make a retaliatory arrest claim even if the officers had probable cause.

At oral argument, Assistant Alaska Attorney General Dario Borghesan argued for the common law rule that probable cause protects against liability for officers enforcing criminal law. Justice Alito raised the range of retaliatory arrest cases that exist. At the one end, there are cases like this one, where there is a disorderly person, an officer arrives, and the individual says something insulting to the officer and gets arrested. At the other end, there are cases where a journalist criticizes officer behavior in an article and weeks later is given a citation for a minor speeding violation.

Justice Kagan followed up on Justice Alito’s point, stating that the second category of cases highlights a common scenario where if an individual says something the officer does not like, he may not look the other way for a minor infraction that he otherwise would look the other way on.

Justice Ginsburg then questioned Borghesan whether the State’s position is that no retaliatory arrest claim could stand unless a plaintiff demonstrates the absence of probable cause. Bourghesan responded, “That is our position, Justice Ginsburg.” Justice Ginsburg then asked Bourghesan to clarify whether the probable cause element should apply for the charged offenses or for some offense not charged. Borghesan then responded that officers should escape liability if there is probable cause “for the stated crime of arrest or the crimes charged or crimes closely related to those crimes.”

On behalf of the United States as amicus curiae in support of Nieves and Weight, Principal Deputy Solicitor General Jeffrey Wall argued that constitutional tort claims under 42 U.S.C. § 1983 have an objective requirement that prevents a purely subjective inquiry into officers’ motivations, and that it is important that retaliatory arrest claims be subject to this screen since they are “easy to alleged difficult and expensive to defend against.”

Arguing for Bartlett, Zane Wilson contended that the court should reject a rigid probable cause requirement that would preclude retaliatory arrest claims.

Justice Ginsburg asked Wilson to clarify the First Amendment conduct in which Bartlett engaged. Wilson stated that with respect to Nieves, Bartlett questioned why Nieves wanted to speak with him, which angered Nieves. Bartlett then told Nieves he did not wish to speak with him. Regarding Weight, Bartlett told Weight that he did not have the right to speak with the minor, Walker, without a parent or guardian being present, which angered Weight.

Justice Alito then suggested that Bartlett was not protesting a social issue or making some important point, but “involved in a personal dispute with a police officer.” Wilson responded that Bartlett “was expressing his disagreement with how the officer was conducting his … investigation.” Wilson then stated that in City of Houston v. Hill, 482 U.S. 451 (1987), the Court identified “the right to criticize a police officer as on the of the distinguishing features between a police state and … a free country.”

Justice Kagan then stated the problem with this case is that there’s always likely to be speech in problematic encounters with officers, and in encounters where an officer should arrest an individual to prevent a greater danger. Justice Kagan also added that “You need to prove that but for your speech, you would not have been arrested.” Wilson agreed with Justice Kagan, but added that “The only thing a police officer needs to be concerned about is to focus on enforcing the law. As long as [he]remains loyal to enforcing the law, the situation takes care of itself.” Chief Justice Roberts noted that Wilson’s statement is “a very cavalier assertion,” as it ignores the disagreements that come with a police encounter.

Wilson later clarified that “what we’re proposing … is that the court view probable cause in light … as a significant factor but not necessarily a controlling factor in whether or not you can state a First amendment retaliation case. And that allows the court to stay focused on the truth, loyal to the wording of Section 1983, and at the same time get to the bottom of these cases in an efficient manner.”

Read the full transcript of the oral argument here. FEDagent will post an update when the Supreme Court decides the case. A decision is expected next year.


This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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