Supreme Court to Decide Whether Probable Cause Defeats Retaliatory Arrest Claim

The U.S. Supreme Court is set to decide whether a finding of probable cause defeats a §1983 claim alleging retaliatory arrest where two troopers arrested a man for disorderly conduct after he protested their conduct.

On April 12, 2014, Russell Bartlett had a few beers and then attended a campsite party at Artic Man, an outdoor winter sporting event in Alaska. At the party, Alaska State Troopers Luis Nieves and Bryce Weight were investigating underage drinking. Nieves attempted to speak with Bartlett, and Bartlett declined. At that point, Nieves contemplated arresting Bartlett for disorderly conduct, but chose not to arrest him at that time.

Several minutes later, Bartlett observed Weight speaking to a minor, who Weight believed to be drinking alcohol. Bartlett engaged with Weight and loudly told Weight that he shouldn’t be speaking to the minor without a parent or guardian present. According to Bartlett, he spoke loudly and close to Weight in order to be heard over the party’s blaring music. But Weight viewed Bartlett’s “escalating voice, his look of anger, and his body language” as “pre-assault indicators.”

Weight them placed his open palms on Bartlett’s chest and pushed him back, as Nieves observed the scene and ran to assist Weight. Video evidence shows that the troopers then ordered a compliant Bartlett to get on the ground and arrested him. Bartlett claims that after he was placed in the back of a police car, not captured on video, Nieves said, “bet you wish you would have talked to me now,” in reference to their earlier encounter at the campsite party.

Bartlett was subsequently charged with disorderly conduct and resisting arrest, although prosecutors later dismissed the case citing budgetary reasons.

Bartlett filed suit against Weight and Nieves under 42 U.S.C. §1983 for multiple constitutional claims, including retaliatory arrest, alleging that the troopers arrested him in retaliation for exercising his First Amendment right to protest Weight’s conduct speaking to the minor at the campsite party.

The federal district court granted summary judgment in favor of the defendants on all claims, holding that the retaliatory arrest claim failed because the troopers had probable cause to arrest Bartlett. Bartlett then appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the district court’s decision as to the retaliatory arrest claim. The Ninth Circuit reasoned that probable cause did not bar a retaliatory arrest claim and that a jury might be persuaded that Bartlett was arrested for his earlier refusal to assist Nieves, rather than for the bases asserted by the troopers.

Nieves and Weight then filed a petition for a writ of certiorari, for the Supreme Court to decide the issue of whether the existence of probable cause for an arrest defeats the arrestee’s claim that the arrest was unconstitutionally retaliatory. The Supreme Court has accepted the petition and set it to be scheduled for argument in its Fall 2018 term. FedAgent will report the court’s opinion when it issues.

The parties’ briefs to the Supreme Court in Nieves, et al. v. Bartlett may be read here.

This case law update was written by James P. Garay Heelan, 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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